R. v. Towle, 2011 ONCJ 57

Ontario Court of Justice Citation: R. v. Towle, 2011 ONCJ 57 Date: 2011-01-24 G. Demarco J. Counsel: R. Cornett , for Crown. J. Santarosa , for Accused. The judgment of the Court was delivered orally by [ 1 ] G. DEMARCO J.: — Dale Towle, the applicant, challenges the constitutionality of Criminal Code sections 258(1)(

c) and 258 (1) (d.01) and 258 (1)(d.1). These are the so-called "evidence to the contrary" provisions with respect to breath test results in cases where an accused is charged with the offence of Over 80. [ 2 ] It is the applicant's position that these sections offend both s 7 (the right to full answer and defence) and s 11(d) (the presumption of innocence) of the Canadian Charter of Rights and Freedoms . The applicant concedes that the s 7 Charter argument is the more compelling of the two arguments advanced or presented and, while not conceding the s 11(

d) argument, this court was invited to make its decision based on the s 7 issues alone. [ 3 ] The constitutionality of the impugned Criminal Code sections was directly addressed in another case in the Ontario Court; a decision of Justice Duncan in the Ontario Court in the case of R. v. Powichrowski , a 2009 decision, it is reported at [2009] O.J. No. 4424 (Ont. C.J.) .

In that case Justice Duncan outlined, more skillfully than I would be able to, the history of the evidence to the contrary provisions of the Criminal Code as well as the evolution of the so-called "Carter Defence" to charges involving the offence of Over 30. He also outlined the changes effected to the Carter defence by the impugned Criminal Code sections. It is, therefore not necessary for me to reiterate Justice Duncan's observations on those questions with which I am in agreement. [ 4 ] In this case, as in the case of Powichrowski, the approved instrument in question was the Intoxilyzer 5000C.

Hereafter I will refer to it as simply "the instrument". The applicant called as an expert witness in the field of toxicology Dr. Michael Ward. The respondent Crown presented its own toxicology expert, Dr. Patricia Solbeck from the Centre of Forensic Science. Again, much of the evidence of the two experts concerning the functioning of the instrument is set out in the findings made by Justice Duncan in paragraph 41 of the decision in R. v. Powichrowski . [ 5 ] The evidence I heard in this case, however, was somewhat different from the evidence called in the Powichrowski case. Before me, Dr.

Ward testified that, whereas the accepted analytical variability attributed to the instrument is plus or minus ten milligrams of alcohol per 100 milliliters of blood, thereby giving rise to the conclusion expressed by Justice Duncan in paragraph 39 of Powichrowski: Where two samples of breath are analyzed, where the lower result is 90 or greater, it is not possible that the subject was under 80 at the time of testing. [ 6 ] (I may say I have abridged that quote to some extent, but the quote is substantially the meaning of what Justice Duncan found). Research indicates, according to Dr.

Ward, that in approximately two percent of cases, because of biological variability of the blood to breath ratio in individual persons, blood alcohol concentration is overestimated by more than ten milligrams per 100 milliliters of blood when breath sample results are compared with actual blood tests. [ 7 ] Moreover, concerning the internal checks for error, which the instrument is programmed to conduct, Dr.

Ward testified that software components of the instrument may have unexpected effects on sub-routines in the analysis procedures, resulting in instrument readings which will not always indicate an error where an error has occurred. He gave several examples. [ 8 ] First, ambient room air alcohol. Dr.

Ward testified that where there is already alcohol present in room air, the instrument will report zero when room air is drawn into it, resulting in an internal adjustment being made for the measurement of the breath sample provided, without the instrument recording that this has taken place. [ 9 ] Secondly, mouth alcohol. Presence of alcohol in the mouth at the time of the providing of samples, as a result of drinking or vomiting, will contribute to a falsely elevated reading.

While the instrument contains a mouth alcohol detector system, or slope detector system as it is referred to, which system is meant to measure mouth alcohol while the sample is being provided, the operation of the mouth alcohol detector system itself is not checked when the instrument is functioning. [ 10 ] Thirdly, radio frequency interference. The presence of radio waves emanating from other nearby radio operated devices may also cause positive results of breath analysis.

Once again, the instrument has an internal system designed to check for and detect such interference, but there is no internal means of checking whether this detection system itself is operating properly. [ 11 ] Fourthly, chemical interference. The presence of chemicals other than alcohol on the breath may contribute to artificially high readings or false positive results. Acetone, for example, which is often present in the breath of persons afflicted with Diabetes, will significantly elevate breath test results. The instrument is outfitted with an interferent detect and detract system.

When this system is functioning properly the instrument will give a result of "interfere" for many interferents. For acetone, though, the system simply adjusts the reading to compensate for the effect of acetone. The system is heat-based, operating on a system of infrared spectroscopy which checks for acetone on a particular wavelength. The instrument print-out does not disclose whether acetone was present in a particular

sample and therefore, if the detection and detraction system is not properly functioning itself, this will not show. [ 12 ] Dr. Solbeck, the Crown expert, confirmed that biological variability routinely exceeds analytical variability and that the effect of biological variability does not appear on the instrument's test record. She also testified that body temperature of the test subject, which is not measured by the instrument, will have an effect on biological variability. [ 13 ] Concerning the internal detection systems of the instrument, Dr.

Solbeck was able to shed further light on those concerns which were raised in Dr. Ward's evidence. With respect to ambient room alcohol, Dr. Solbeck testified that if the concentration of alcohol in the room air where the sample is obtained is greater than 19 milligrams of alcohol in 100 milliliters of air then the blank test of air drawn from the room shows an error. Otherwise, the blank test shows a zero reading for the blank test.

In such a case, however, the resulting analyses are adjusted for the presence of room air alcohol and the alcohol concentration from room air alcohol is deducted so that the test result shows only the additional alcohol concentration contained in the sample provider's breath. The fact of this deduction having taken place, though, does not appear on the test record. [ 14 ] With respect to mouth alcohol, Dr.

Solbeck testified that mouth alcohol of 40 percent concentration held in the mouth for 30 seconds up to several minutes will fully dissipate within 15 minutes, so that if a second sample taken after the prescribed time is in good agreement, that is less than 20 milligrams per 100 milliliters different from the earlier reading, mouth alcohol is not a factor. This principle applies equally whether the alcohol is consumed or regurgitated.

She did confirm, though, that the instrument does not internally check its slope detector system or mouth alcohol detection system. [ 15 ] With respect to radio frequency interference and chemical interferent interference, Dr. Solbeck testified that there is potential for these factors to affect readings and the instrument does not internally check the operation of the systems which detect these types of interference. Dr. Solbeck did not know how evidence of the malfunction of these detection systems could be gathered. [ 16 ] Another potential difficulty with the instrument, testified to by Dr.

Ward, was something called "outliers". In addition to biological variability and malfunctioning of the instrument's internal error checking systems, Dr. Ward also pointed out this phenomenon known to occur in scientific measurement. He testified research has shown that occasionally repeated measurements of the same specific sample will result in one or more anomalous results. [ 17 ] With breath tests, the discrepancy or anomaly of an outlier has been measured to be as high as 28 milligrams of alcohol per 100 milliliters of blood.

And with blood analyses the discrepancy has been measured to be as high as 40 milligrams of alcohol per 100 milliliters of blood. Dr. Ward testified, however, that fewer errors of this nature are known to occur in blood analyses. These anomalous results are referred to as "outliers" and are disregarded by scientists as being incorrect, unexplained anomalies. [ 18 ] Dr. Ward posits the possibility of two such anomalous results being obtained from the instrument in consecutive tests. Dr.

Solbeck acknowledges the existence of outliers but she says that the occurrence of two outliers in succession is highly improbable, although she concedes any single test result is potentially an outlier. [ 19 ] Dr. Ward was further of the opinion that certain types of equipment malfunction or operator error can only be detected if the procedures of instrument preparation and obtaining and measuring of breath samples are video and audio recorded. Ideally, such recordings should show the face and keys of the instrument and record any sounds emitted during those processes. [ 20 ] Dr.

Ward testifies that in about 15 percent of the videos of such procedures that he has viewed something anomalous occurs. The anomalies are varied: instruments accepting samples too quickly, temperature checking difficulties, keying out of proper sequence and other difficulties. Dr. Ward is therefore not able to agree with the conclusion arrived at by Justice Duncan in paragraph 42 of the Powichrowski decision. [ 21 ] Dr. Solbeck is of the opinion that, except in the case of an improperly prepared or calibrated instrument, every internal malfunction of the instrument would show in the test record.

She does, however, acknowledge that there could be instances of operator error which might not be identified on the test record of the incident. [ 22 ] On the basis of the evidence presented before me in this case, I am not able to come to the identical conclusion expressed by Justice Duncan in paragraph 42 of R. v. Powichrowski .

My finding on the evidence which I heard is that Justice Duncan's conclusion in Powichrowski is valid except where there has been error in the calibration of the instrument or where there has been operator error in the preparation of the instrument, either documented or undocumented, or where the biological variability of the blood to breath ratio of the test subject significantly alters the validity of test results or where the internal testing mechanisms of the instrument have malfunctioned or, finally, where both measured test results are outliers. [ 23 ] The new section, 258(1)(

c) of the Criminal Code , provides that the lower result of two breath samples obtained in conformity with its requirements, s 258(1)(c)'s requirements, is conclusive proof of blood alcohol concentration both at the time of driving and at the time of testing in the absence of evidence tending to show all of the following: (i), the approved instrument was malfunctioning or operated improperly; (ii), the malfunction or improper operation produced a result of over 80 in the accused's blood; and, (iii), that the accused's blood alcohol concentration would not in fact have been over 30 at the time of driving. [ 24 ] The first two of these evidence requirements address the so-called presumption of accuracy whereas the third addresses both the so-called presumption and accuracy and the presumption of identity.

It will be readily observed that in the case of an individual whose biological makeup is such that their blood to breath ratio will cause the instrument, when functioning and operating properly, to register a result which is not accurate, it is impossible to satisfy the first evidentiary requirement of s 258(1)(c); that is, that the instrument was malfunctioning.

It is ?easily conceivable that in such a case the actual blood alcohol concentration of the individual could be below 80 milligrams of alcohol in 100 milliliters of blood while the test results showed a result of over 80. [ 25 ] In such a case, an innocent person would be left without recourse by virtue of being unable to show that the instrument was malfunctioning or improperly operated in as much as the instrument would have been functioning properly in accordance with how it was programmed. This would occur notwithstanding the availability of evidence to demonstrate that based upon the biological variability

of the test subject the test readings were not accurate. [26] Section 258 (1) (d.01)(ii) makes it clear that such evidence is not admissible to demonstrate the innocence of an accusedperson. That

section provides that evidence tending to show malfunction of the instrument "does not include" such evidence. [27] With regard to the possibility of undetected malfunctioning of any of the internal systems which check for error within theinstrument, counsel for the applicant argues that disclosure of evidence which might tend to show such malfunction is rarely available.

Itseldom happens that the instrument calibration and preparation or the test preparation and testing procedures are video recorded. [28] In this age, when routinely KGB statements and confessions of accused persons to persons in authority are video recorded forcourt scrutiny by the prosecuting police forces, it is most unfortunate that breath testing procedures are not likewise video recorded as amatter of standard police procedure.

Doubtlessly, if video recording were standard procedure, in the overwhelming majority of caseswhere issues arise concerning equipment malfunctioning, those issues could be conclusively determined by reference to such evidence. [29] Alternatively, evidence of records or logs of previous tests conducted on the instrument and service logs as well as results ofexternal checks of the instrument's accuracy may be of assistance in this regard.

It is also always open to the defence that the qualifiedtechnician who conducted the test be produced for cross-examination for the purpose of discovering any operator error. [30] In any case where the defence is based upon an alleged malfunction of the internal error checking systems of the instrument, itwill be asserted that the instrument test result overstated the sample provider's blood alcohol concentration.

Essential to such adetermination is evidence of the actual blood alcohol concentration of the test subject at the time of testing. [31] Similarly, in those rare cases where both test results are alleged to be anomalous, incorrect readings or outliers, it will benecessary for there to be evidence of the actual blood alcohol concentration of the test subject at the time of testing.

Without suchevidence, it is impossible to assert that the instrument malfunctioned. [32] Section 258(1)(d.01) provides as follows, and once again I abridged the words of the legislation: Evidence tending to show that an approved instrument was malfunctioning does not include (emphasis added) evidence of, (i), theamount of alcohol that the accused consumed; (ii), the rate at which the alcohol that the accused consumed would have been absorbedand eliminated by the accused's body; or (iii), a calculation based on that evidence of what the concentration of alcohol in the accused'sblood would have been at the time when the offence was alleged to have been committed. [33] It is argued by counsel for the respondent Crown that this portion of the legislation must be interpreted as meaning that proofthat the instrument was malfunctioning does not consist solely of evidence of the accused's alcohol consumption and the absorption andelimination thereof by the accused's body.

That, however, is not what the legislation says.

The words used in the legislation are that theevidence of malfunction "does not include" evidence of the accused's alcohol consumption and the absorption and elimination of suchalcohol by the accused's body. [34] Crown counsel argues that in this legislative context the word "include" means "does not consist solely of". [35] The verb "include" is defined in the Canadian Oxford Dictionary as follows, "(1), involve comprise or reckon in as part of awhole; (2), treat or regard as part of the whole." Therefore the clearly expressed intention of Parliament in s 258(1)(d.01) is that (1)evidence of malfunction does not involve, comprise or reckon in, as part of the determination whether the instrument was malfunctioningor whether there was operator error, the evidence of alcohol consumption and its absorption and elimination from the accused's body, or(2) that evidence is not regarded as part of the determination of that question. [36] The applicant argues that, because the words of the legislation do not permit such evidence to be taken into account in thedetermination of the malfunction and operator error issues, the legislation is overbroad. [37] Crown counsel did not seek to contradict the assertion that an

interpretation of the legislation in conformity with the OxfordCanadian Dictionary meaning of "include" was overbroad, rather, Crown counsel urged the court to accept an

interpretation of the word"include" as meaning in this context "to consist solely of". [38] I believe the words of the legislation must be interpreted as conveying their ordinary, everyday meaning. That is to say, theword "include" must be interpreted in the manner of its dictionary definition. [39] The question remains whether this legislation is overbroad. In R. v.

Heywood, (SCC), [1994] 3 S.C.R. 761(S.C.C.), at paragraph 49 the majority of the Supreme Court of Canada held: In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the Stateobjective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective,the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason.

The effect ofoverbreadth is that in some applications the law is arbitrary or disproportionate. [40] The clear intention of Parliament in promulgating the impugned legislation was to stem the tide of Carter defencesunaccompanied by any attack on the functioning of the instrument or upon its operation which, as Justice Duncan said in thePowichrowski case at paragraph 22, "...had evolved from what was thought in Gilbert to be a faint hope, to a defence that was difficult todeny." [41] Undoubtedly that legislative objective is not only legitimate, it is highly desirable.

Regrettably, in some of its applications,notably those which I have referred to in this judgment and perhaps in others, this legislation has the effect of depriving possibly innocentindividuals of the right to tender or to have taken into consideration, in the determination of whether the Crown has met its burden ofestablishing guilt, evidence which is probative of innocence. In my view this violates principles of fundamental justice.

[42] The observations which I have made concerning the over breadth of s 258(1)(d.01) apply likewise to s 258(1)(c). In thesituation of an individual who is able to advance evidence that, because of that person's breath to blood alcohol ratio, the properlyfunctioning instrument has given a result which is incorrect and overstates that person's blood alcohol concentration, s 258(1)(

c) does notpermit such evidence to be taken into account by the trier of fact. [43] It was not necessary for Parliament to deprive such individuals of a valid defence in order to curtail the facility with which theCarter defence may be successfully advanced. The result is a denial of natural justice to those persons who find themselves in thatsituation. [44] It may be that reading in or reading down could salvage either of the impugned sections but this court is ill-equipped to eitherread in or read down and I believe that to read in or read down would be to create a new legislative scheme in this case.

In s 258(1)(d.01)Parliament has chosen unequivocal means of attempting to achieve its objective. To change the meaning of the clearly expressed wordswould constitute, to quote Justice Cory in the Heywood decision, "...an unwarranted intrusion into the legislative domain." [45] I am therefore of the opinion that both sections 258(1)(

c) and 258(1)(d.01) violate s 7 of the Charter of Rights and Freedomsbecause they are both overly broad in their effect. [46] In my view, neither paragraph may be salvaged by virtue of s 1 of the Charter. [47] In applying the criteria set out in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103 (S.C.C.), for making such adetermination I do not believe it can be maintained that the legislation satisfies on preponderance of probability the first component ofthe proportionality test set out at paragraph 20 of that judgment, namely: The measures adopted must be carefully designed to achieve the objective in question.

They must not be arbitrary, unfair or based onirrational considerations. [48] The potential unfairness of the provisions in certain cases is manifest. [49] Nor can it be said to satisfy the second criterion of the proportionality test of the Oakes decision, "The means should impair aslittle as possible the right or freedom in question." [50] The complete foreclosure of a viable, legitimate defence in certain circumstances cannot be said to impair as little as possiblethe right to full answer and defence afforded by the principles of fundamental justice guaranteed in s 7 of the Charter. [51] For the foregoing reasons I am of the view that sections 258(1)(

c) and 258 (1)(d.01) of the Criminal Code violate s 7 of theCharter of Rights and Freedoms and that they are not within the reasonable limits prescribed by law as can be demonstrably justified in afree and democratic society as contemplated by s 1 of the Charter and they are, therefore, unconstitutional. [52] I do not see any basis for a successful challenge of the constitutionality of s 258(1)(d.1) however. Therefore, this application isallowed in part; ss 258(1)(

c) and 259(1)(d.01) are declared unconstitutional. The application in regard to s 258(1)(d.1) is dismissed. [53] I make the observation that the importance of the issue determined in my decision may affect thousands if not tens ofthousands of cases and it would, it seems to me, be very prudent that the hearing of this issue by courts of higher authority than this beexpedited.