2020 QCCQ 3574, 2020 QCCQ 3574

Translated from the original French R. c. Murphy 2020 QCCQ 3574 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE LOCALITY OF SAINT-JÉRÔME “Criminal and Penal Division” No.: 700-01-165072-185 DATE: July 30, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC COTÉ ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

ANNIE MURPHY Accused ______________________________________________________________________ DECISION ______________________________________________________________________ [ 1 ] Annie Murphy (the accused) was tried on charges of operating a motor vehicle while her ability to do so was impaired by alcohol and operating such vehicle with a blood alcohol level over the legal limit. [ 2 ] By the end of its evidence, counsel for the prosecution conceded that he had not proven the essential elements of the offence under the first count.

As a result, the Court acquitted the accused. [ 3 ] Counsel for the accused is now filing a motion for non-suit, arguing that the prosecution has not established the accused’s blood alcohol level at the time of the events. According to her, the prosecution cannot benefit from the presumption found in

section 320.31(1) (

a) of the Criminal Code , since it has not established, beyond a reasonable doubt, the target value of the alcohol standard used for the system calibration check of the instrument employed to collect the accused’s breath samples. [ 4 ] For its part, counsel for the prosecution contends that the qualified technician’s testimony and the documents filed into evidence are sufficient. As a result, he claims that the elements giving rise to the presumption found in the statutory provision at issue have been established in this case.

BACKGROUND [ 5 ] Martin Guèvremont and Richard Lebel, both police officers from the Sûreté du Québec, testified at the accused’s trial. The Court accepts the following: [ 6 ] On March 17, 2018, at 12:39 a.m., Officers Guèvremont and Dufresne intercepted the vehicle operated by the accused after observing several Highway Safety Code offences.

They had just seen her quickly drive out of the parking lot of a hardware store located across the street from a licensed establishment, pass within two (2) metres of a pedestrian crossing the street, and fail to stop at a number of compulsory stop signs. [ 7 ] During his intervention with the accused, Officer Guèvremont obtained reasonable grounds to believe that she had been operating her motor vehicle while her ability to drive was impaired by alcohol.

He therefore ordered her to provide a breath sample by means of an approved screening device (ASD). [ 8 ] The accused failed the test and Officer Dufresne immediately put her under arrest. Officer Guèvremont ordered her to accompany them to the police station to provide a breath sample by means of an approved instrument. [ 9 ] The samples taken indicated a blood alcohol level well over the legal limit. [ 10 ] The results are included in the “Qualified Technician’s Certificate” filed, en liasse, as Exhibit P-2, at page 1, during Officer Richard Lebel’s testimony. ANALYSIS

[ 11 ]

Section 320.31(1) (

a) of the Criminal Code , in force since December 18, 2018, reads as follows: If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if (

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; [ 12 ] Furthermore, section 32(2) of An Act to amend the Criminal Code provides that this new provision applies retroactively to proceedings instituted before its coming into force. [ 13 ] Thus, to benefit from the presumption created by this provision, the prosecution must establish, among other things, the target value of the alcohol employed during the calibration tests of the instrument: R. v.

Flores-Vigil , 2019 ONCJ 192 ; R. c. Bélange r, 2019 QCCQ 8906 at para. 47 . [ 14 ] According to the case law consulted, that evidence can be established by filing an analyst’s certificate indicating the concentration of alcohol in the alcohol standard used (see R. v. Afriyie , 2020 ONSC 2894 at para. 32 ; R. v. Yip-Chuck , 2019 ONCJ 367 at para. 14 ; R. c.

Bélange r, 2019 QCCQ 8906 at para. 48 ) or by the testimony of the qualified technician who replaced the alcohol standard, stating that he or she read the bottle’s label concerning the concentration of alcohol it contained or that he or she consulted the analyst’s certificate revealing that information: R . c. Whaley (5 February 2020), Joliette, C.Q. 705-01-106574-181, François Landry J.C.Q.; R . v. Porchetta , 2019 ONCJ 244 at paras. 43 to 49 ; R. v.

Fulkerson , 2019 ONCJ 335 at para. 37 . [ 15 ] Moreover, viva voce evidence from the qualified technician who took the breath samples to the effect that, based on his or her work experience and/or training, the alcohol standard is always 100 mg%, although hearsay, can also be sufficient in certain circumstances: R . v. Porchetta , 2019 ONCJ 244 at paras. 43 to 49 ; R . v. Does , 2019 ONCJ 233 at para. 10 ; R . v. Pelaia , 2019 ONCJ 676 at paras. 53 , 54; R. v. Patel , 2019 ONCJ 544 at paras. 27–28 ; R. v. Yip-Chuck , 2019 ONCJ 367 at para. 14 ; R. v. Fulkerson , 2019 ONCJ 335 at para. 37 ; R. v.

McAlorum , 2019 ONCJ 282 ; R . v. Paradzayi , 2019 ONCJ 599 at para. 13 ; R . v. McRae , 2019 ONCJ 310 at para. 20 ; R . v. Hinter , 2019 ONCJ 635 at para. 38 ; R . v. Cousins-Tremblay , 2020 ONCJ 101 at para. 35 . Contra : R . v. Vinocai , [2019] O.J. 1997 at para.10–14. Application [ 16 ] First, an “Analyst Certificate” was filed into evidence. It indicates that Bernard Mathieu, an analyst and chemistry professional, analyzed the sample “Laboratoire Atlas Inc. Lot 13JE”, and that that sample was suitable for use with an approved instrument.

However, the certificate does not indicate the alcohol concentration of the sample at issue. [ 17 ] Furthermore, other than the previously mentioned “Qualified Technician’s Certificate”, two “printouts” from the approved instrument were also filed into evidence.

They contain the following information: [ translation ] ✔ DataMaster DMT-C, serial 200782 ✔ Alcohol Standard: 100 ✔ Company: Laboratoire Atlas Inc. ✔ Lot No.: 13JE ✔ Expiry date: 2020/05/31 ✔ Changed by: Jonathan St-Arnaud, badge number: 13512 ✔ Dated: 2018/03/06 at 6:45 a.m. ✔ Valid until: 2018/03/20 at 6:45 a.m. [ 18 ] Last, a fact sheet entitled “Information – Alcohol Standard” was attached. It contains the following information: [ translation ] ✔ Information – Alcohol Standard ✔ Chg on: 2018/03/06 6:45 a.m. ✔ Valid until: 2018/03/20 6:45 a.m. ✔ Company: Laboratoire Atlas Inc. ✔ Lot No.: 13JE

✔ Target value: 100 ✔ Expiry date: 2020/05/31 ✔ Name of Qt: Jonathan St-Arnaud, badge number: 13512 [ 19 ] Officer Lebel has been a qualified technician since 2014. He is the one who took the accused’s breath samples using an approved instrument. He added that, in his opinion, everything went well. [ 20 ] He explained in detail, with reference to the documents mentioned, the procedure used to ensure the proper functioning of the instrument employed.

For each sample, he checked that the “blank” tests read 0 mg%, that the internal checks of the instrument were conducted and that the system calibration checks (formerly called the [ translation ] “control tests”) were at the proper levels, that is, 100 mg%, as they were in this case. [ 21 ] He referred to the last sheet and stated that he was not the one who changed the alcohol standard used to calibrate the instrument, but rather that it was Officer Jonathan St-Arnaud. According to him, the qualified technician must enter this information by hand in the breathalyser instrument at such time.

He stated that this “reset” is done so that the information on the new alcohol standard used will be available and known. [ 22 ] This document also allowed him to conclude that the standard alcohol solution came from lot 13JE, produced by Laboratoire Atlas Inc. A number of bottles from that lot were sent to various Sûreté du Québec police stations.

He stated that several of those bottles were at the Prévost detachment at the time of the events. [ 23 ] And the target value of the standard alcohol solution used was 100 mg%. [ 24 ] This information is recorded on each bottle by the analyst who tests a sample from the identified standard alcohol lot, before they are sent out. He stated that this is the value sought by the analyst.

It is one of the facts the qualified technician must record when the standard alcohol solution used is changed periodically. [ 25 ] Furthermore, he stated that in all of his years of experience as a qualified technician, he has never seen a standard alcohol solution with a target value of other than 100 mg%. [ 26 ] According to him, that is because the desired approved instrument system calibration check value is 100 mg%, although a result within +/- 5 mg% is acceptable. [ 27 ] Given that Officer Lebel was not cross-examined on this information and in the absence of any evidence to the contrary having been adduced, his statements remain uncontradicted. [ 28 ] In light of the whole of the evidence adduced, the Court is of the view that the prosecution has established beyond a reasonable doubt that the target value of the alcohol standard used in this case was 100 mg%.

The qualified technician’s testimony, although constituting hearsay, and the documentary evidence filed, are sufficient in this case. [ 29 ] In conclusion, the Court adopts the remarks by Duncan J. in R. v. Yip-Chuck , 2019 ONCJ 367 at paras. 15 to 17 : It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. I suspect that only a small percentage of what one “knows” is gained from firsthand experience or personal verification . At some point any hearsay concern dissipates and a witness may testify as to learned knowledge.

In this exact context courts have permitted qualified technicians to testify over hearsay objections as to the suitability of solutions used in breath testing machines. In the same way, in my opinion, the technician may testify as to what he has learned about the alcohol concentration and target values of the solutions that are used. That evidence was given by the technician in this case and established what was required to give rise to the presumption of accuracy. [Citations voluntarily omitted.] [ 30 ] As a result, given that the other conditions of

section 3201.31(1) of the Criminal Code are met, the Court is of the view that the presumption of accuracy therein applies. FOR THESE REASONS, THE COURT: [ 31 ] DISMISSES the motion for non-suit filed by counsel for the accused; [ 32 ] DECLARES that the prosecution benefits from the presumption of accuracy in

section 320.31(1) of the Criminal Code ; __________________________________ ÉRIC COTÉ J.C.Q.

Mtre Sédrick Valiquette Director of Criminal and Penal Prosecutions Counsel for the prosecution Mtre Sophie Beauvais Mtre Rose-Marie Picard Hamelin Avocats Counsel for the accused Dates of hearing: September 6, 2019, November 26, 2019, February 7, 2020 July 8, 2020