R. v. Johnson Date:, 2015 BCPC 11

Citation: R. v. Johnson Date: 20150127 2015 BCPC 0011 File No: 40346-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TREVOR STANLEY JOHNSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.E. SHAW Counsel for the Crown: N. Devji and R. Garson Counsel for the Defendant: J. Cooper Places of Hearing: Penticton , B.C. Dates of Hearing: May 8, 27, July 17,24, Oct 18, Nov 8, 2013; April 16, 29, May 5, 6, 2014

Written submissions completed: by the Crown and Defence by Oct 31, 2014 Date of Judgment: January 27, 2015 [ 1 ] Trevor Stanley Johnson has pled not guilty to: 1. Operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol; and 2. Operating a motor vehicle when the concentration of alcohol in his blood exceeded 80 milligrams (mg) of alcohol in 100 millilitres (mL) of blood. BACKGROUND [ 2 ] On the evening of October 22, 2011, Mr. Johnson, with a few of his friends and acquaintances, attended a house party at the residence of Reese Davidson.

There was drinking and music and one witness estimated there were about 40 people present. [ 3 ] After spending some time at the Davidson party, in the early hours of October 23, 2011, some of the party-goers, including Mr. Johnson, travelled to a second party at Ken Smith’s residence. At this party there were 10 – 15 party attenders. [ 4 ] Just before 1:40 am, Mr. Johnson left the party, driving his jeep with Mason Draus, who was sitting in the back seat of the jeep, and a young lady, Ms. Edwards, in the front passenger seat. [ 5 ] Mr.

Johnson was driving the jeep down the driveway to leave the property, when the jeep was in a single vehicle accident, leaving the road and ending up on its side in the orchard just adjacent to the road and the driveway to the house. [ 6 ] The accused and Ms. Edwards crawled out of the back of the jeep. Mr. Draus was partially trapped under the jeep. The accused dug the dirt around the jeep to assist Mr. Draus to get free. [ 7 ] Mr.

Draus was taken to hospital by ambulance where he spent the rest of the night and he was then released. [ 8 ] Constable Michon, a 24 year veteran RCMP officer, arrived at the Smith residence at 1:55 am after being dispatched to a single vehicle accident report. The officer estimated he arrived within one half hour of the accident happening. As he approached the Smith property he saw a yellow jeep on its side in the orchard. [ 9 ] The officer noted some skid marks on the side of the road directed towards the east side embankment of the road where the jeep was located.

He noted the driveway is a gravel driveway leading from the house to the road. On each side of the entrance to the driveway is a large rock. There were no external lights along the driveway. [ 10 ] Constable Michon spoke with the accused who identified himself as the driver. When Mr. Johnson spoke to him, the officer smelled alcohol.

The accused advised the officer he had consumed two ‘beers’ with his last beer being consumed at 10:30 - 11:00 p.m. [ 11 ] Constable Michon formed an opinion that the accused was impaired by alcohol and the officer advised the accused he was under investigation for impaired driving and arrested him. The officer made a breathalyzer demand and he placed the accused in the back of the police vehicle. [ 12 ] The accused was transported and arrived at the detachment at 2:30 a.m.

At the detachment Constable Michon, who is a qualified breath technician on the BAC DataMaster C Breath testing instrument, took the accused to the breath testing room and proceeded to obtain two breath samples. [ 13 ] The accused was released from custody at 4:36 a.m. that same morning. ISSUES [ 14 ] The issues to be decided are: 1. Was Mr. Johnson’s ability to operate a motor vehicle impaired by alcohol at the time he had care or control of the motor vehicle?; and 2. Did the concentration of alcohol in Mr.

Johnson’s blood exceed 80 milligrams of alcohol in 100 millilitres of blood at the time he had care or control of the motor vehicle?

POSITION OF THE ACCUSED [ 15 ] In relation to the “impaired care and control” charge, the accused submits the evidence fails to prove beyond a reasonable doubt that the accused was impaired at the time he was alleged to have had care and control of the vehicle. [ 16 ] In relation to the offence of “care and control over .08”, the defence submits that there is evidence that raises a reasonable doubt the DataMaster breathalyzer instrument, used in obtaining the samples and readings from the accused, was properly calibrated during its annual maintenance, and the defence submits, the improper calibration is sufficient to raise a reasonable doubt on the reliability of the breath test results taken from Mr.

Johnson on October 23, 2011. POSITION OF CROWN

[17] The Crown submits, in relation to the “impaired care and control charge”, there is evidence that proves beyond a reasonabledoubt that the accused was impaired while driving the jeep on October 23, 2011. [18] The Crown further submits that the readings taken by Constable Michon on October 23, 2011 are evidence of the accused’sconcentration of alcohol in his blood at the time of the reading and at the time of the driving, and in the absence of evidence tending toshow that the approved instrument was malfunctioning or improperly operated, the readings are, pursuant to s. 258(1) (c), conclusiveproof of Mr.

Johnson’s concentration of alcohol in his blood. LAW AND ANALYSIS 1. “Impaired Care and Control” [19] The Defence provides the decision of R. v. Andrews, 1996 ABCA 23 (ABCA) as authority for the test to determine ifan accused’s ability to drive is impaired by alcohol or a drug. [20] In Andrews, the accused was convicted of being impaired under s. 253(1) (

a) but acquitted of a charge under s. 253(1) (

b) ofoperating a motor vehicle while the concentration of alcohol in his blood exceeded 80 mg in 100 mL of blood. [21] The Court of Appeal referred to the case of R. v. Stellato, (ON CA) (affirmed by the S.C.C. (SCC), [1994] 2 S.C.R. 478) as authority for the principle that once it is proven the accused’s ability to drive was impaired, it is notnecessary for the impairment to be more than slight.

The important factor in the test is that if there is impairment, even if it is a slightimpairment, that impairment must be shown to impair the accused’s ability to operate a motor vehicle. [22] At paragraph 20 of the Appeal decision in Stellato, the Ontario Court of Appeal quotes from R. v. Campbell as follows: The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trial Judge mustdecide on the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence.

Before he can convict, a trial Judge must receive sufficient evidence to satisfy himself beyond a reasonable doubt that the accused’sability to operate a motor vehicle was impaired by alcohol. …If there is sufficient evidence before the Court to prove that the accused’s ability to drive was even slightly impaired by alcohol, theJudge must find him guilty. [23] The court in Andrews considered how a judge is to assess whether a person’s ability to drive is impaired by alcohol, and statedin paragraph 21: [21] How, then, is a judge to assess whether a person's ability to drive was impaired by alcohol?

This is a question of fact. It is also thequestion to which the McKenzie case was directed. In that case, Sissons C.J.D.C. discussed the problems of proof of the offence ofoperating a motor vehicle while impaired. He stated at pp. 318-19: The effect of alcohol is subjective before it is objective and there may be dangerous impairment even though there are no objectivesymptoms of intoxication. However, for the practical purposes of a criminal trial, we must, at the present time, depend largely onobjective symptoms.

There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive.There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, characterof the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes,character of the breathing.

If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems areasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability todrive is impaired. I do not think such a finding should be made on a slight variation from the normal. In short, McKenzie speaks to the kind of evidence from which an inference of impairment of the ability to operate a motor vehicle may bedrawn.

Where one is relying on circumstances, if the combination of the conduct relied upon constitutes a sufficient departure from theconduct of unimpaired, or normal, individuals it is safe to infer from that conduct an existence of impairment of the person's ability todrive.

It sets out, not a rule of law, but a helpful guide to use in assessing evidence. [24] In the within case, the evidence that is to be considered to determine whether there was impairment of control of the accused’sfaculties is objective evidence, such as the occurrence of a single vehicle motor vehicle accident, as well as subjective evidence from theobservations of the witnesses. [25] Although the accused was a driver of a vehicle involved in a single vehicle accident, that is not, in and of itself, sufficient toprove beyond a reasonable doubt that the accused’s ability to operate a vehicle was impaired, even slightly. [26] The witness evidence included observations from Constable Michon; Mason Draus, the backseat passenger who was injured inthe accident; Kael Clay, one of the partygoers at the second party; and Morgan Rowley, another party attendee. [27] Mason Draus, the passenger in the backseat of the jeep involved in the accident, was intoxicated during the evening of October

22 and the early morning hours of October 23 rd , 2011. Mr. Draus has difficulty with his memory of the evening and early morning of the accident. He remembers the accused as the driver and a girl being in the front seat, but after he got into the jeep, his memory is a blur and he does not remember anything specific after that. He had no evidence of any observations of the accused prior to or after the accident. [ 28 ] Kael Clay, another one of the party attendees, did not recall seeing the accused drinking anything at the second party. He did observe the accused working to dig Mr.

Draus out from under the overturned jeep, and he recalls the accused telling him to call an ambulance. Mr. Clay testified he did not observe anything abnormal about the accused’s actions when he observed him digging to get Mr. Draus free from being partially pinned under the jeep. [ 29 ] Morgan Rowley was a party attendee at both of the parties that evening. At the first party, she did observe the accused with a cup in his hand, but did not know what was in the cup.

At the second party, she testified the first she saw the accused was when the accused and the female passenger were in the jeep just prior to the accident. She noted the accused turned on his headlights but the jeep had not driven away before she turned and re-entered the house. About 3 or 4 minutes later, Ms. Rowley went outside to retrieve something from her vehicle and saw that an accident had happened involving the accused’s jeep. She observed the accused and the female passenger crawling out the back of the overturned vehicle and she heard the accused tell people to get help. Ms.

Rowley then ran back into the house to get help. Ms. Rowley stated she did not ‘really see’ the accused after the accident, although she did observe him digging. Ms. Rowley did not observe anything unusual about the accused’s ‘physical condition’ after the accident. [ 30 ] Constable Michon arrived at the Smith property, the location of the accident, about one half hour after the accident. Mason Draus was no longer trapped under the jeep and the ambulance was in attendance. The officer testified he has extensive experience over his 24 years of being a police officer with people who are intoxicated.

He has been involved in well over 500 impaired investigations. [ 31 ] The accused, Mr. Johnson, identified himself to the officer as the driver of the vehicle involved in the single vehicle accident. The officer noted about a dozen people in the area, some of whom were intoxicated and others were drinking. The officer believed there was a house party going on. [ 32 ] On speaking with the accused, the officer noted the smell of alcohol on the accused’s breath and the accused admitted that he had consumed two beers, the last beer being consumed at 10:30 - 11:00 p.m. the previous evening.

The accused was arrested, and placed in the back seat of the police vehicle. The officer noted a stronger odour of alcohol in the back seat of the police vehicle after the accused was placed there. The accused was transported to the detachment. [ 33 ] The accused declined to contact legal counsel and he was placed in the observation room for the breath sample process.

The officer confirmed the accused followed instructions to provide the breath samples. [ 34 ] The first breath sample was obtained at 2:48 a.m. with a reading of 140 mg/100 mL and the second breath sample was obtained at 3:13 a.m. with a reading of 130 mg/100 mL. [ 35 ] Constable Michon stated he and the accused had a long conversation during the observation periods between the taking of the samples, discussing the accused’s concerns and life.

He noted that at one point he observed the accused crying. [ 36 ] Constable Michon observed the accused and testified he was polite and cooperative throughout the investigation and at the detachment.

The officer further noted the accused appeared to understand everything the officer was asking him. [ 37 ] At the detachment the officer completed an investigation guide which is completed along with the breath sample tests to record observations the officer makes of the physical symptoms of the accused at the time samples are taken. [ 38 ] The officer looked for and commented on ten areas of observation, including for example, observations of the accused’s speech, breath, face, eyes, balance and walking. [ 39 ] Of the ten areas of observation noted in the investigation guide, the only area the officer noted that was not essentially normal was he smelled an odour on the accused’s breath.

The other nine observed areas rated as no problems or essentially no abnormal observations. [ 40 ] The officer observed the accused in the courtroom during the trial, and although he did not speak to the accused directly, he stated he did not see any difference in any symptoms, signs, or observations with the accused at trial compared with the observations he made during his investigation on October 23 rd , 2011, other than he observed the accused was physically ‘bigger’ than he was on the date of the accident. The officer agreed the accused was not impaired at the time of the trial. [ 41 ] In

summary, the evidence is that on October 23, 2011, a police officer observed Mr. Johnson had a smell of alcohol on his breath, and Mr. Johnson was the driver of a vehicle involved in a single vehicle accident late at night which resulted in one of the passengers having some injuries. There is no other evidence of any physical symptoms or physical observations to indicate Mr. Johnson had any impairment due to the alcohol content in his body. The police officer opined that given his observations of the tire track marks on the road near the accident, that he believed Mr. Johnson was an impaired driver.

The police officer also gave evidence that Mr. Johnson was observed to be appropriately responsive to questioning, considerate, polite, cooperative, and his physical demeanour was reported as normal except for the smell of alcohol on his breath. [ 42 ] The police officer observed the accused having an emotional reaction in the breath test room, but I do not find Mr.

Johnson’s emotional reaction at the detachment following the accident, the arrest by the police, and considering the discussions the accused had with the officer about the accused’s concerns and life, to be inappropriate or abnormal or definitive evidence of impairment. [ 43 ] Recognizing there is no single test to determine if an accused is impaired, and using the indicia as set out in Andrews as a guideline, including the general conduct, smell of breath, character of speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of pupils in eyes, and character of breathing, I have considered both the objective evidence and the

subjective evidence available to determine whether the accused, Mr. Johnson, was impaired by alcohol. I have considered, if there waseven a slight impairment, whether the impairment affected Mr. Johnson’s ability to operate a motor vehicle. On considering all of theevidence, I find there is insufficient evidence to prove beyond a reasonable doubt that Mr. Johnson was impaired by alcohol on the earlymorning hours of October 23, 2011, or that his ability to operate a motor vehicle was impaired. 2. “Care and Control Over .08” [44] In determining the issue of whether the concentration of alcohol in Mr.

Johnson’s blood exceeded 80 mg of alcohol in 100 mLof blood, the accused raises the defence of ‘evidence to the contrary’ and argues the DataMaster breath testing instrument, used inobtaining the samples and readings from the accused, was improperly calibrated during its annual maintenance, and that the impropercalibration is sufficient to raise a reasonable doubt on the reliability of the breath test results taken from the accused on October 23, 2011. [45] The Crown argues that the annual calibration of the instrument was sufficiently performed and the Defence has failed to raise areasonable doubt that the instrument was malfunctioning. [46] Both the Crown and defence submitted the case of R. v.

St.-Onge Lamoureux, 2012 SCC 57 , [2012] 3 S.C.R. 187,which considers ‘evidence to the contrary’. [47] The Crown and defence have also provided the recent case of R. v. So, 2014 ABCA 451 (ABCA), which was decided after thehearing of this matter, and after submissions were made by counsel. [48] Evidence to the contrary is dealt with in s. 258(1)(

c) of the Criminal Code. In So, the court set out the parts of s. 258(1)(

c) thathave been struck out as follows: [10] Section 258(1) (

c) of the Criminal Code states, in relevant part: 258.

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

section 253 ..., (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force, R.S.C., c. 27 (1st Supp.), s. 36] (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 ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by aqualified 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 thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things -- that theapproved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in thedetermination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that theconcentration 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 whenthe offence was alleged to have been committed; [11] The Supreme Court of Canada read down section 258(1)(

c) in R. v. St--Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187.Consequently, the words struck in the excerpt above, though not yet amended out of the Criminal Code, have no application. Howeverwe provide them in this quotation because the appellant suggests that the second struck requirement is what the judges belownevertheless required of him. 12 The Supreme Court in St--Onge Lamoureux concluded that the struck words violated the right to be presumed innocent because bythem an accused person could be convicted even though the trier of fact has a reasonable doubt.

The requirement for evidence "tendingto show" the second and third things contravened the Charter. 13 "[T]he only evidence that can be tendered to raise a reasonable doubt about the reliability of breathalyzer test results is now evidencethat the instrument was malfunctioning or was operated improperly ... The burden on the accused has thus been increased, as he or shecan no longer ask the judge to draw an inference of malfunction or improper operation from indirect evidence by raising a Carterdefence. Evidence related directly to the instrument itself is now required": R. v.

Dineley, [2012] 3 SCR 272, 2012 SCC 58 at para 17.The Carter defence consisted of expert opinion that the amount of alcohol the person consumed was inconsistent with the breathalyzertest results. [49] Pursuant to a demand under s. 254(3), once a qualified technician has taken a breath sample which is analysed, and a certificatehas been produced and provided according to the requirements in s. 258, there is a presumption the results are accurate.

Absent evidencethat raises a reasonable doubt to the operation of the instrument or the functioning of the instrument, that is ‘evidence to the contrary’, theevidence of the analysis results are conclusive.

[ 50 ] The accused does not argue that the operator, that being Constable Michon, a qualified breath technician, operated the breath testing instrument improperly. [ 51 ] The accused argues a reasonable doubt is raised that the instrument malfunctioned based on deficiencies the accused’s expert, Audrey Jakus, outlined in her expert testimony in relation to the annual calibration of the instrument which are summarized as follows: 1. That the CAL packs and the linearity solutions are the standard that everything is calibrated from; 2.

That the calibration error that occurred in this case is that the service agent entered an incorrect solution value during the calibration process, that being a value of ‘100’ rather than the value of ‘97’ that should have been entered; 3. That the use of the ‘100’ value caused a material error in the calibration process; and 4.

The inaccurate calibration renders the calibration foundation of the instrument inaccurately thus transmitting error to any subsequent testing done relying on the inaccurate calibration foundation. [ 52 ] The accused argues any future testing result from the breath testing instrument which was inaccurately calibrated will be incorrect and meaningless.

Essentially, the accused argues that inputting the wrong value at the calibration stage causes the approved instrument to have a fatal and material flaw, and this calibration error is sufficient to raise a doubt whether any future test results from the approved instrument are correct and accurate. [ 53 ] In addition, Ms. Jakus opined that because the Crown failed to produce disclosure of the testing of all ancillary equipment used in the calibration process, that failure to disclose raises a doubt whether the ancillary equipment, such as the thermometer used for calibration, was working correctly.

The accused argues if it is unknown whether all the equipment used for the annual calibration was working properly then the calibration process is further flawed. [ 54 ] The Crown disagrees. Brian Image, the Crown’s rebuttal expert witness, opined that although the value of ‘100’ was used rather than the ‘97’ in calibrating the approved instrument, that value does not cause the instrument to have a material or fatal flaw which causes the instrument to produce inaccurate or unreliable results. [ 55 ] Mr.

Image opined that the calibration of the instrument is and in this case was, followed by a process which checks the instrument’s ability to analyse known values of various test solutions, and the analysis results of the test solutions following the calibration of the instrument by the service agent in relation to the instrument at issue, proved the instrument was functioning within expected parameters and was producing reliable accurate analysis results. [ 56 ] The Crown further argues, in relation to Ms.

Jakus’ opinion that a reasonable doubt is raised because the Crown did not disclose all of the documentation showing a calibration of, or documentary proof, that each and every piece of equipment used to calibrate the instrument was operating properly, is speculation by the accused and the demand by the Defence for such evidence could go on ad infinitum . [ 57 ] On the disclosure argument, I agree with the Crown.

It becomes speculative and meaningless to challenge the accurate operation of each ancillary piece of equipment the service agent uses in the calibration process. [ 58 ] The question is then, is the use of a value of ‘100’ instead of a value of ‘97’ during the calibration process of the approved instrument sufficient to create a reasonable doubt that the approved instrument did not, or might not produce accurate results of a breath sample analysis following the calibration process? [ 59 ] Both experts gave very detailed and voluminous scientific evidence which took days to hear. [ 60 ] Having considered all of the expert evidence, including the written scientific materials that were entered as exhibits, I find that although the service agent used a value of 100, I accept the expert opinion of Mr.

Image that the value of 100 that was used was within the accepted parameters for the calibration of the instrument. I further accept the opinion of Mr. Image, that the value of 100 that was used did not cause the approved instrument to suffer a fatal malfunction such that the sample results following the calibration were inaccurate or incorrect.

The calibration confirmation testing done by the service agent following the calibration provided confirmation that the instrument was working within accepted parameters, and further I accept that the testing done by the qualified technician prior to each test to ensure the instrument is working, using known solutions, is further confirmation that the approved instrument was working within the required parameters. [ 61 ] To raise a defence of ‘evidence to the contrary, the Defence must show evidence that ‘tends to show’ the approved instrument was malfunctioning or was operated improperly.

I have found that notwithstanding the service agent used the value of ‘100’ as opposed to ‘97’ in the calibration process, the use of that value did not tend to show or raise a reasonable doubt that the instrument was malfunctioning.

The test results of the known solutions following the calibration process were a check to ensure the proper functioning of the approved instrument, and I accept that the results were such that the instrument was shown to be operating within the expected parameters for normal functioning. [ 62 ] Having rejected the accused’s defence of ‘evidence to the contrary’, the evidence of the two breath samples, that is the first breath sample obtained at 2:48 a.m. with a reading of 140 mg/100 mL and the second breath sample obtained at 3:13 a.m. with a reading of 130 mg/100 mL, is presumed to be conclusive evidence of the concentration of alcohol in the accused’s blood on October 23, 2011, at the time he was driving the vehicle and at the time the samples were taken. [ 63 ] In the result:

a. I acquit the accused of count one, care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol; and b. I find the accused guilty of count 2, of operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 mL of blood. ______________________________ The Honourable Judge M.E. Shaw