R. v. Lam, 2014 ONCJ 247

Citation: R. v. Lam , 2014 ONCJ 247 ONTARIO COURT OF JUSTICE (Toronto Region) BETWEEN: HER MAJESTY THE QUEEN -and- BILL LAM REASONS FOR JUDGMENT Justice B. Knazan May 9, 2014 Mr. T. Goddard Counsel for the Crown Mr. P. Lindsay Counsel for Mr. Lam

Introduction This case requires the Court to determine whether the police’s failure to perform an annual recommended maintenance on an intoxilyzer means that the intoxilyzer was not operated properly within the meaning of s. 258(1) (c)(iv) of the Criminal Code . Mr. Lam is charged with operating a motor vehicle on September 8, 2008 having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Mr.

Lam was operating a motor vehicle that day and the prosecution relies on the results of two breath samples that he provided into the intoxilyzer in question, both 110 milligrams of alcohol per 100 millilitres of blood. He provided these samples at 1:09 a.m. and 1:29 a.m. on September 9. Although there is an issue concerning the changing of the alcohol standard, I would resolve that in favour of the prosecution and find that all of the prerequisites that the prosecution needs to establish in order to rely on the presumptions in s. 258 (1) (c)(iv) of the Code have been met.

Therefore, according to the subsection, in the absence of evidence tending to show that the instrument was malfunctioning or was operated improperly, the results of the analyses that the intoxilyzer made would be conclusive proof that the concentration of alcohol in Mr. Lam’s blood was 110 milligrams of alcohol per 100 millilitres of blood at the time that the analyses were made and at 11:56 on September 8 th when the police stopped him for speeding. But Mr.

Lam has proven that the approved instrument that the qualified technician Officer Simpson used on September 8, had last been sent for maintenance more than one year prior to that date. As this period is not within the recommended interval between inspections in the recommended standards and procedures of the Canadian Society of Forensic Science Alcohol Test Committee, Mr. Lam submits that he has presented evidence tending to show that the “instrument was operated improperly” within the meaning of the

section and that the prosecution has not proven beyond a reasonable doubt that his blood alcohol level was the same as the results of the analyses at the time that he was stopped. The alleged offence Officer Gomes clocked Mr. Lam speeding on Highway 404 southbound. After speaking to Mr. Lam, Gomes had a reasonable suspicion that he had alcohol in his body and demanded that he provide a sample of breath into an approved screening device. Mr.

Lam provided a sample after several attempts and failed and Officer Gomes both arrested him for this charge and made another demand that he provide a sample of breath into an approved instrument. The operation of the intoxilyzer Gomes took Lam to the police station and after Mr. Lam spoke to duty counsel, he took him to Officer Simpson, a qualified technician. Simpson operated the Intoxilyzer 5000C properly and satisfied himself that it was functioning properly. He made sure that the alcohol standard solution was within its appropriate lifespan that was seven days.

He performed a diagnostic check and a calibration check, according to his training. He performed the tests on Mr. Lam. He ensured that Mr. Lam’s samples of breath were received directly into the intoxilyzer. He waited 17 minutes between the tests and the tests produced the results of the analyses. The instrument produced test records that showed that it was functioning properly. Mr. Lam told Officer Simpson that he had one beer.

Unknown to Officer Simpson, the machine had not been taken in for annual maintenance for 14 months and had been in use since its return from its last annual maintenance for 13 months. This information comes from the evidence of Sergeant Zelasko, an administrative sergeant whose duties included overlooking the maintenance of operational equipment like the Intoxilyzer 5000C. He produced an Intoxilyzer and Maintenance Tracking Log that showed that the intoxilyzer that Simpson used to analyze Lam’s breath on September 9 th , 2008 last came back from annual maintenance at a company named Mega-Tech on August 10, 2007.

The next time that it was sent for annual maintenance was October 2, 2008 and it was returned for service in December 2008. Zelasko testified that he attempted to have the machine in for annual maintenance once a year. The reason that he did not send in the intoxilyzer that Simpson used on Lam was that while he usually had a spare at the Toronto detachment that technicians could use while the intoxilyzer was in for annual maintenance, the spare was not available until October 2, 2008.

When the intoxilyzer was returned from annual maintenance in December, there were a number of repairs that had been done in addition to the annual maintenance according to Mega-Tech’s sales order provided to the police. Items in the account included service, called a level D service, and provision of 16 separate itemized line parts. In a paragraph at the bottom of the Sales Order dated December 24, 2008, the following appears: Complaint: Annual. Unit at some time has been flooded. Performed a level D service.

Replaced all internal tubing, both check valves, sample chamber, 1 st 3-way valve body, power supply, sample cell lenses/seals, valve fittings and breath tube sur-lok o-rings. Also replaced chopper motor assembly. Cleaned both 3-way valves and refurbished the 2 nd . Re-certified unit. Unit is operating within manufacturers specs. The Evidence about the Significance of the Maintenance Record: The Intoxilyzer 5000C is an approved instrument within the meaning of s. 254 of the Criminal Code .

The Forensic Science Alcohol Test Committee (ATC) that has kept abreast of advancements in breath test technology, changes in the Criminal Code legislation and various issues surrounding breath testing, also approves instruments. That body not only approves instruments but also publishes Recommended Standards and Procedures in keeping with new developments in science, technology and the law. Both in their 2003 Recommended Standards and Procedures that obtained at the time of Mr.

Lam’s tests and in their subsequent Recommendations published in 2009, the ATC made the following recommendation under the heading of Maintenance and Modifications. V Maintenance and Modifications Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and accessory equipment at the time of use. Calibration of Approved Instruments shall be done with a wet- bath simulator. In addition to these calibrations and/or calibration checks, formal maintenance procedures are essential to the integrity of the breath test program.

A . Inspections All Approved Instruments, Approved Screening Devices and accessory equipment intended for active use in the program shall be individually inspected before being placed into service, and periodically thereafter, to ensure that they initially meet, and continue to meet, the manufacturer’s specifications. The recommended interval between inspections is one year. All inspections shall be performed by persons deemed by the Program Director to meet the qualifications described in paragraph V.C. below. Accessory equipment

includes simulators, equilibrators or other equipment required for the use of calibration of Approved Instruments and Approved Screening Devices. Based on the recommendations of the ATC, Mr. Ismail Moftah, a toxicologist and expert in the use and operation of the Intoxilyzer 5000C, called by Mr. Lam, gave his opinion that Officer Simpson was not operating the approved instrument properly because it had not had annual maintenance at the time that it was used.

He further testified that the fact that repairs were done when the machine was finally sent out for annual maintenance gave him further concern about the accuracy of the readings. In Mr. Moftah’s expert opinion, the fact that the test records produced by the intoxilyzer itself, which are admissible under s. 258, show it to be functioning properly, does not remove his doubts about the reliability of the breath tests yielded by the improperly operated instrument. He considered the problems identified in Mega-Tech’s sales order, particularly the flooding, to be significant.

In cross-examination, Crown counsel put to Mr. Moftah that the Table of Contents of the ATC recommendations did not include their recommendation regarding annual maintenance under the heading of Operation Procedures and he agreed, but pointed out that it was only a table of contents. He also did not have any basis to say that the flooding that was described in the sales order actually meant that there was trouble with the machine on September 8, 2008 when Mr. Lam provided his samples.

He also agreed that nothing in the recommendations of the ATC stated that a failure to comply with any of them would cast a doubt on the accuracy of the results. Given the evidence of the prosecution’s expert Dr. Mayers and the law, this is what this case is about. Mr. Moftah agreed that the ATC recommendations stated that “Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and Accessory Equipment at the time of use”. ATC had issued a position paper, after Mr.

Lam’s arrest and test in which they stated: Records relating to periodic maintenance or inspections cannot address the working status of an AI at the time of a breath test procedure and are intentionally absent from the requirements listed above. In a passage relevant to the crux of this case, the committee in their position paper also stated: “Thus, while a failure to adhere to such quality assurance measures could lead to instrument malfunction, this occurrence will be detectable by the quality control tests done during the breath test procedure.” Mr.

Moftah did not agree that a problem would necessarily show up in the quality control tests or that problems with the maintenance detected after the test could not be relevant to the accuracy of the tests. Mr. Moftah also testified that if Mr. Lam’s blood alcohol level was as stated in the results of the intoxilyzer analysis, Mr. Lam’s breath blood alcohol level would have been greater than 80 mg. of alcohol in 100 ml. of blood when Officer Gomes stopped him. It is clear inference from his calculations that one beer would not have produced the results of the analyses. Dr.

Daryl Mayers testified for the prosecution in reply. He is also an expert in the intoxilyzer 5000C. He is a member of the Alcohol Test Committee and participates in the preparation of the recommendations on which Mr. Moftah bases his opinion and the 2012 position paper explaining the relevance of maintenance records. Dr. Mayers disagreed with Mr. Moftah.

In his opinion, the fact that the instrument accepted the breath samples and produced the test record showing that all the calibrations and requirements of the instrument were met, enabled him to say that it appeared to him that the instrument was in proper working order and as a result could give reliable and accurate results of the individual tested at the time that they were tested. He agreed that the recommendation of the ATC regarding annual maintenance and inspection was a good recommendation but stated that it was not a guarantee that the machine will be working properly.

The fact that the instrument had not been sent for annual maintenance at the time of the tests, does not, in his opinion, mean that the instrument is not working properly at the time of the tests. As a scientist,

the data most applicable to making the determination of whether or not the instrument is working properly is the information supplied by the Intoxilyzer test record. And in this case, as Mr. Moftah confirmed, the intoxilyzer test records showed that the instrument was working properly. Dr. Mayers stated that he was not an expert in the maintenance of the intoxilyzer. But with respect to the flooding that was noted by Mega-Tech in its sales order regarding the maintenance on the intoxilyzer, he did know of the issue of flooding.

In his opinion the intoxilyzer would not have been able to operate had it been flooded either entirely at the time of the test, or at a previous time and the flooding had not been completely purged at the time of the test. If either of those had occurred the technician would not have been able to perform Mr. Lam’s test because the instrument would have given an ambient failure message. In his opinion the fact that the technician was able to take samples, that is that the instrument accepted them, shows that any flooding did not affect the result. This part of Dr.

Mayers’s evidence is important when applying the statutory language to what occurred here. Further, in Dr. Mayers’s opinion, the fact that the ATC divided their recommendations into different sections regarding maintenance and operation is significant. Any problem that had occurred during the period when a machine had not been sent in for maintenance would show up in the test record, in his opinion. He also explained that the purpose of the 2012 position paper was to clear up any confusion about the recommendations regarding maintenance relating to the proper operation of the machine.

In his opinion, and in the opinion of the ATC that he explained, annual or periodic inspection would not have any bearing on the operation of the machine. Dr. Mayers did agree that there were toxicologists, though fewer and fewer, who disagreed with him and agreed with Mr. Moftah on the issue of whether failure to comply with the annual maintenance recommendations was relevant to the proper operation of the instrument and he further agreed that it was a subject on which toxicologists could reasonably disagree.

The Law This case turns on whether the results of the analyses that Officer Simpson obtained are conclusive proof of Lam’s blood alcohol level, or whether Mr. Lam has presented evidence that tends to show that the intoxilyzer into which he provided samples of his breath was operated improperly. This flows from section 258 (1) (

c) of the Criminal Code , which I now set out: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (

i) REPEALED: Repealed before coming into force, effective December 31, 2010 ( S.C. 2008, c. 20, s. 3 ). (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, 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, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, 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; Since the decision of the Supreme Court of Canada in R. v.

St. Onge-Lamoureux 2012 SCC 57 ( St. Onge-Lamoureux ) an accused need only show one of the three things referred to, that is that the approved instrument was malfunctioning or was operated improperly.

Although the

section reads: “tending to show”, what the accused must do is adduce evidence that casts doubt on or raises a doubt aboutthe reliability of the results. This follows from the opening introductory words of the Supreme Court in St. Onge-Lamoureux.

In settingout the issue, Justice Deschamps says “To challenge the reliability of the results, the accused must raise a doubt that the breathalyzer wasfunctioning and was operated properly (paragraph 2) and “…Parliament was justified in requiring that any evidence adduced to castdoubt on the results be directed at the functioning or operation of the instrument” (paragraph 3). It has long been held that the evidence adduced must raise a reasonable doubt but only that: R. v. Crosthwait (SCC),[1980] 1 SCR 1089, St. Onge-Lamoureux paragraph 16. In terms of whether Mr.

Lam has presented the evidence that he must, it will simplify matters to put aside the word malfunctioned. Mr.Lam is not submitting that the machine malfunctioned, although the word “malfunctioned” does arise in the Supreme Court’s discussionof the type of evidence that must be adduced and when considering Dr. Mayers’s evidence. Mr. Lam only submits that he has adducedevidence that the machine was “operated improperly.” At first glance it could seem that improper operation has nothing to do with maintenance and only with the actual testing.

Was operatedis the passive voice of the verb to operate that in its ordinary meaning refers to one action being performed at one time, or a series oftimes. The French re-enforces this: “l’utilisation incorrecte”. It is the Supreme Court of Canada that broadened the scope of the words “was operated” in St. Onge-Lamoureux itself. In setting out thebackground of the case, Justice Deschamps refers in some detail to the ATC’s recommendations when discussing the expert evidence inSt.

Onge-Lamoureux, the very same recommendations that are in evidence in this case and the cause of the differing expert opinions andthe reason for the ATC position paper. In the context of noting that the expert evidence revealed “that the possibility of an instrumentmalfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real [.]”, (paragraph 25),Justice Deschamps noted that: The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet themanufacturer’s technical specifications.

According to the Committee, the calibration and maintenance of instruments are essential to the“integrity of the breath test program.” This is the very paragraph of the recommendations on which Mr. Moftah based his opinion. Justice Deschamps goes on to note that human error can occur when “the samples are taken”, which is the actual operation, and “atvarious steps in the maintenance of the instruments” which appears to broaden the meaning of operation. (paragraph 26). She thenwrites: Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(

c) and s.258 (1)(d.01), since theaccused can rebut the presumptions by showing that the instrument was not properly maintained or operated. One can assume that the Court does not write gratuitously. But they have added the words “not properly maintained” to the words“malfunctioning or improperly operated” in the section. This is the Supreme Court of Canada’s

interpretation of the section. The Court goes on to find that the requirement to establish all three things required by s.258 (1) (

c) infringes s. 11(

d) of the Charter.Ultimately, the Court found that the requirement to show malfunctioning or improper operation is justified under s.1 of the Charter. Inarriving at that conclusion, Justice Deschamps returns to the meaning of improperly operated. She discusses the requirement that theaccused “raise a doubt that the instrument was functioning or was operated properly.” (paragraph 37).

In holding that this requirementmeets the second prong of the Oakes test that the infringement be rationally connected to Parliament’s objective, she states that: It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and thatrelate to possible deficiencies in the instrument itself or the procedure followed in operating it. (paragraph 38).

Then in finding that the measure violates the right to be presumed innocent as little as reasonably possible, Justice Deschamps writes: It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has

recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies. (paragraph 41) It is correct as Crown counsel submits that this paragraph is in the context of concluding that the infringement of s. 11(

d) is justified, but in my opinion that makes it even a stronger statement of statutory

interpretation of s.258(1)(c). I therefore conclude that an accused can rebut the presumption of accuracy in s.258 (1)(

c) by adducing evidence that raises a reasonable doubt that the instrument used to analyse samples of his breath was properly maintained. Has Mr. Lam rebutted the presumption of accuracy? Mr. Lam has shown that the instrument that Officer Simpson used had not been sent for annual inspection for over 13 months when he provided his breath samples into it. Annual inspection is the ATC’s recommendation. Mr. Moftah worked for the Centre for Forensic Sciences for 26 years. His expertise was not contested by the Crown and it is his opinion that non-compliance with the recommendation is improper maintenance.

He goes further and gives the opinion that non-compliance with the maintenance recommendations amounts to improper operation. This is a question of fact and law and the law as I have shown has been determined by the Supreme Court of Canada; improper operation can include improper maintenance.

He bases his opinion of improper maintenance on three facts: 1 ) the recommendations of the ATC. 2 ) the maintenance records showing that the instrument was returned from annual maintenance on August 7, 2007, used on Sept 8, and not sent out again till October 2, 2008. 3 ) One of the complaints to be addressed by Mega-Tech in addition to annual maintenance was that there had been flooding. The important evidence regarding whether or not the failure to send the machine for annual maintenance tends to cast doubt on the reliability of the results is that of Dr. Mayers.

He does not, as he could not, deny that the machine was not sent for annual maintenance until after the year had passed. In his expert opinion, the failure to send the machine for maintenance is irrelevant. The test records show that the machine was reliable on the day it was used. As for the flooding of the machine that was noted in the sales order, Dr. Mayers like Mr. Moftah, is not an expert in the maintenance of the machine.

But in his opinion the flooding is also not relevant because, had the flooding affected the instrument at the time of testing or before so as to render it malfunctioning, the instrument could not have accepted the samples. And it did accept the breath samples and produced a record stating that all was in order. In stating that neither the failure to observe the recommendation for annual inspection nor the reference to flooding could not have affected the test results, Dr. Mayers is conflating “malfunctioning” and “operated improperly”. The

section says or , not and and the way that the

section is drafted allows for the possibility that the instrument can function although operated improperly. The Supreme Court has confirmed this by extending improper operation to improper maintenance, which may have nothing to do with actual operation on a particular day. The proper functioning of the instrument is not in issue in this case. Mr. Lam does not raise it. Dr. Mayers’s evidence is that if the instrument is functioning properly, including the self-test records that it produces for the technician to be satisfied that it is functioning and for it to accept the samples, then the results are reliable.

And there is no evidence that Simpson did not operate the machine properly. But, since the Supreme Court has extended the meaning of improper operation to improper maintenance, Simpson, unknown to him was indeed not operating the machine properly, because he was operating an instrument that was improperly maintained. Dr. Mayers though not testifying as a member of the ATC was highly qualified to explain the recommendations of the Committee. He is more qualified than Mr. Moftah as Mr. Moftah pointed out. In his view it is important that the annual maintenance recommendation is in one

section of the recommendations and that operation and procedure are in another. This is essentially the position of the ATC in its position paper that I have referred to, published in Canadian Society of Forensic Science Journal Volume 45 Number 2, June 2012, before the decision in St. Onge-Lamoureux in November 2012.

There the ATC states: “It should be recognized that the ATC equipment evaluation procedures and guidelines are distinct from the standards and procedures regarding the operation of breath testing equipment. Consequently, when assessing the accuracy and reliability of AI test results it is imperative that Operational Procedures not be confused with Equipment Evaluation Tests”. This

article appears to be anticipating this case or other cases in which defendants attempt to rebut the presumption of the accuracy of the test results as the Criminal Code permits them to. It goes on to say: Notwithstanding the long acceptance of breath alcohol testing by the judiciary, Canadian courts have recently faced increasingly technical submissions regarding the science and validity of breath alcohol testing. But significantly, a footnote to this statement paraphrases the law both as it was and as it turned out to be when St. Onge-Lamoureux was decided.

The footnote states: Such applications are the result of restrictions on “evidence to the contrary” in Bill C-2, the Tackling Violent Crime Act (2008), which essentially requires that there be evidence tending to show instrument malfunction or operator error in order to contradict the BAC produced by the AI. Now, since St. Onge-Lamoureux , we know that improper operation is not restricted to operator error but encompasses improper maintenance. This machine was not properly maintained.

Annual maintenance is recommended for the integrity of the system in order to convict a person under a provision which infringes the right to be presumed innocent until proven guilty beyond a reasonable doubt. Not only that, but when the machine was sent for maintenance, there was more work to be done than annual maintenance, including a notation that the machine had flooded. Dr. Mayers, totally professional, restricted his opinion to the most that he could say, that the machine appeared to be functioning according to the test records. He also fairly agreed that others beside Mr.

Moftah hold to the view that improper maintenance can amount to improper operation and that it is a reasonable position though one that he disagrees with. As I have already stated it is not for the experts to say that there was improper operation but for the court as a matter of mixed fact and law and following the discussion in St. Onge-Lamoureux , I find that there was. Crown counsel urges an

interpretation of paragraph 41 of St. Onge-Lamoureux that would require an accused person to raise a doubt as to the reliability of the tests in addition to raising a doubt as to whether the machine was operated properly. That is not how I interpret that passage. Because of the relevance of the paragraph to both Mr. Lam’s and the prosecution’s argument, I set it out again: It should also be mentioned that the new provisions do not make it impossible to disprove the test results.

Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies. (paragraph 41) From the

section itself and the words “Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly and that there might be deficiencies in the maintenance of the instrument or the test process”, I conclude that the evidence that the accused must adduce need only raise a doubt that the machine was operated properly and that will necessarily cast doubt on the reliability of the results. The accused need not go farther and show that the deficiencies did affect the reliability of the results.

The last sentence “what the new provisions require is that evidence tending to cast doubt on the reliability of the results related directly to such deficiencies” does not mean that the accused must raise a doubt as to the proper operation of the instrument and a further doubt about the reliability of the results. It is the improper operation of the instrument that raises a doubt about the reliability because the court has said “ the results will be reliable only ” if the instruments are maintained properly.

My conclusion respectfully differs from those of Justice Wilson in R. v. So [2013] A.J. 1067 and Justice G. Campbell in R. v. Ketler [2013] O.J. No. 3081 , although neither of those judges was dealing with improper maintenance that the Supreme Court dealt with so directly and in such detail in St. Onge-Lamoureux . Crown counsel also submitted that there is a paradox in Mr.

Moftah relying on the recommendations of the ATC as the basis for his opinion that the use of the intoxilyzer amounted to improper operation when the test committee itself has issued a position paper saying that it could not affect the reliability of the test results and when another expert, who happens to be a member of the ATC has testified that non-compliance with the recommendation regarding annual maintenance is not improper operation and could have no effect on the reliability of the results.

Justice Wilson in So, supra made a similar observation when she wrote at paragraph 28: “It seems odd that counsel should be permitted to breathe more life into these protocols than their creators would allow”. Crown counsel also emphasizes that the Court in St. Onge-Lamoureux noted that Parliament did not adopt the recommendations of the ATC. I do not see any paradox in Mr. Moftah basing his opinion that the machine was improperly operated on the recommendations of the ATC. The committee in their position paper and Dr. Mayers in his testimony do not in any way distance themselves from the recommendation.

Rather, they say that not following the recommendation relates to the program as a whole and not to the procedures and operation of any particular step. Everyone agrees that the recommendations matter and that it is preferable that they be followed, if they had been in this case, I would not be giving this judgment. In any event, as I have explained, my conclusion that the machine was not properly operated is not based solely on Mr. Moftah’s opinion. It is based on the clear and detailed discussion of the need for maintenance in St. Onge-Lamoureux that I have already reviewed at length. In St.

Onge-Lamoureux , Justice Deschamps observed that Parliament had not adopted the ATC recommendations in the course of finding that s.258 (1) (

c) violated s.11(

d) of the Charter, saying that Parliament did not provide any alternative mechanisms that would enable a court to find that the instruments are generally maintained. (paragraph 27). The court was not saying that the recommendations were not relevant to a determination of whether the instrument was maintained and did, as I have explained, interpret proper operation to include proper maintenance. Crown counsel used the analogy of a car that the owner does not take in for scheduled recommended maintenance, but that continues to operate and function as a car should without problems. Whether or not it could be said that this car is being properly operated is the very issue in the

interpretation of “improperly operated” in s. 258 (1)(

c) and the Supreme Court of Canada has decided in St. Onge– Lamoureux that with reference to an approved instrument it is not being properly operated if it is not maintained. This is not about one individual driver choosing to maintain his car or not. This is about the integrity of the statutory scheme and a

section that infringes everyone’s right to be presumed innocent until found guilty beyond a reasonable doubt. Mr. Lam said in his statement that he had one beer. Crown counsel asks me to give little weight to this un-cross-examined statement to a police officer . But a statement that the prosecution introduces is evidence for and against the defendant. There is no reason to disbelieve it. It does seem improbable given the intoxilyzer readings. Standing alone it would amount to a Carter defence that is now impermissible.

But the evidence of consumption is not worthless when there is evidence tending to show that the machine was improperly operated. The very issue is the accuracy of the test results. Combined with my finding that Mr. Lam has introduced evidence to show that the instrument was not operating properly his statement enters into the sphere of what is now permissible. It is evidence tending to cast doubt on the reliability of the results, but combined with evidence related directly to the deficiency of improper maintenance.

This Court is as concerned as the ATC, the Supreme Court of Canada, Parliament and every citizen about the serious crimes related to operating motor vehicles having consumed too much alcohol. The result here raises no fear that the prosecution or the police will be overwhelmed with requests for disclosure of large technical records - the dates of maintenance were proven in short testimony by Officer Zelasko who produced a one page maintenance log and two certificates of maintenance.

Nor is there any danger of any impossible obligation being imposed on the police that will defeat the efforts of Parliament and the ATC that has worked over 40 years on developing reliable scientific methods of detecting drunk drivers and proving blood alcohol levels in fair proceedings. All the police need to do is send the instrument for maintenance instead of continuing to use it beyond a year because the spare machine has been sent to another detachment, thereby ensuring the integrity of the breath test system. Mr. Lam has rebutted the presumptions of accuracy and identity in s. 258 (1) (c).

The only other evidence of Mr. Lam’s blood alcohol levels when Officer Gomes stopped him is Mr. Moftah’s reading back the levels from the time of the tests to the time of driving, but that also depends on the results of the analyses accurately reflecting his blood alcohol level. There is therefore no proof beyond a reasonable doubt that Mr. Lam was operating a motor vehicle with the prohibited blood alcohol concentration. I find him not guilty. _________________________ Brent Knazan May 9, 2014