R. v. McDonald, 2021 BCPC 244

Citation: R. v. McDonald 2021 BCPC 244 Date: 20211005 File No: 42881-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT ANTHONY CLARE MCDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: T. Morgan Counsel for the Defendant: D. Marion,Q.C. and S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: April 19 & June 28, 2021 Date of Judgment: October 5, 2021 A Corrigendum was released by the Court on October 14, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction and Background:

[ 1 ] Mr. McDonald is charged with operating a conveyance while his ability to do so was impaired by alcohol contrary to

Section 320.14(1) (

a) of the Criminal Code (Count 1). He also faces a charge that, within two hours after ceasing to operate a conveyance, his blood alcohol concertation was equal to, or exceeded, 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 320.14 (1) (

b) of the Criminal Code (Count 2). [ 2 ] These charges arise from events on April 24, 2020. Cst. Doerr has been a member of the RCMP for 20 years. At about 9:00 PM that evening, he was patrolling and observed Mr. McDonald’s vehicle, ahead of him, drive very close to a concrete barrier to the left of the driver. He decided to pull over the vehicle and proceeded to conduct an impaired driving investigation. Mr. McDonald was given a roadside test which he failed. He was then chartered and warned and taken to the detachment to provide breath samples. Cst.

Pickering, the Qualified Technician, arrived to conduct the testing. [ 3 ] Mr. McDonald provided breath samples and was subsequently charged with the two offences. [ 4 ] At the conclusion of the evidence, Crown invited me to acquit Mr. McDonald on Count 1 and I did so. This decision is in relation to the remaining charge - Count 2. [ 5 ] At the beginning of the trial, Crown realized that the Certificate of Analyst contained an incorrect lot number and an expiry date that preceded the offence date. I ruled that a corrected Certificate of Analyst was not admissible.

Crown suggested an adjournment to correct this oversight. After considering the prejudice to Mr. McDonald arising from delay, as well as the clear message from the Supreme Court of Canada that trial judges bear responsibility for ensuring that trials proceed in a timely manner, I declined to allow the adjournment. As a result, the trial proceeded without a Certificate of Analyst. The Evidence: [ 6 ] Crown also did not have a Certificate of Qualified Technician for reasons that will become apparent later in this judgment. Accordingly, Crown proceeded to call viva voce evidence from Cst.

Pickering, the officer who operated the INTOX EC/IR II equipment (the Instrument) on the night in question. He attended the Qualified Technician Certification Course from September 23 to 27, 2019, received his certification on September 30, 2019 and is designated as a Qualified Technician (QT).

He testified that: • The Instrument is never turned off and his practice is to attend at the detachment to make sure the “expiry dates are good and everything is in working order”. • He was satisfied that night that this was the situation and the Instrument was in good working order. • His practice is that after fifteen minutes of observation has passed, he initializes the Instrument with the person’s name and “everything to go on the associated documents that comes out at the end”; • The Instrument “goes through some self checks” which he monitors to “make sure they are within its limits” and the device can be used. [ 7 ] He testified that the “limits” refers to an alcohol standard in the device, a gas standard, and it is set at 82 mg percent per 100 ml of fluid.

It sets the baseline for internal workings of the device based on a known standard that is 10 mg percent. If it is, he can use the device and, in this case, it was within that limit. Cst. Pickering determined that he could continue with the test. [ 8 ] He has been taught that sometimes the Instrument can present some problems with it not being in that range, but has never seen that issue come up with this Instrument and he didn’t see it that night. [ 9 ] Once the fifteen minutes has lapsed based on the investigators time (in this case, the time according to Cst.

Doerr), the device is initialized, and it has completed the self-checks, the person is brought in and Cst. Pickering obtains breath samples. He testified that he instructed Mr. McDonald about how to provide a sample and gave him the tube mouthpiece attached to the breath tube. He coached him until enough breath was captured. [ 10 ] Cst. Pickering was shown a document called “Intox EC/IR II: Subject Test (the Subject Test).

The following times and readings were set out in the Subject Test: • Subject 230 at 21:50 (Investigator Time 21:49); • Subject 200 at 22:15 (Investigator Time 22:15); and • Subject 190 at 22:38 (Investigator Time 22:37). [ 11 ] Cst Pickering was asked to read and explain those results in his direct examination and he initially testified that those readings meant 230 mg. percent per 100 ml of blood; 200 mg percent per 100 ml of blood and 190 mg per cent per 100 ml of blood.

He testified that the instrument operated “just as I was trained.” [ 12 ] There can be up to four breath samples taken although in practice it is normally two. Here, there were three breath samples. He testified that the reason there were three samples is because there was more than 20 mg. percent per 100 ml blood difference between the first (230 mg. per cent per 100 ml of blood) and second (200 mg. per cent per 100 ml of blood) samples. [ 13 ] He was asked in direct examination if there was a “certificate of qualified breath testing”; he response was “no”.

I expect that was reference to a Certificate of Qualified Technician which sets out the breath test results. Cst. Pickering testified that because there were three numerical results, the device would not produce a certificate and he was unable to produce one manually. [ 14 ] At the conclusion of Crown’s direct examination, the court took the afternoon adjournment to allow defence counsel to consult with her client just prior to beginning cross examination. When the case was recalled, Crown sought to adduce evidence in direct

examination from Cst. Pickering relating to his description of the breath readings. Over the adjournment, I understood that Crownrealized the description given by Cst. Pickering (200 mg percent per 100 ml of blood) does not meet the description of the offence unders. 320.14 (1)(

b) which is expressed in terms of mg. of alcohol in ml. of blood. He discussed this with Cst. Pickering. Cst. Pickeringtestified that he was advised by Crown to leave out the word percent. [15] Defence objected to this line of questioning on the basis that Crown counsel was not clarifying the witness’s evidence, he waschanging it and, in effect, cross examining his own witness. [16] To keep the trial moving, I declared a voir dire and advised that I would give my ruling on this aspect of the trial at a later date.Cst.

Pickering was re-directed to the Subject Test and asked if he would articulate the test results in another way. This time he testifiedthat the readings were 230 mg. of alcohol per 100 ml of blood, 200 mg. of alcohol per 100 ml of blood and 190 mg. of alcohol per 100 mlof blood. Regarding the third reading, he said 190 mg. of blood per 100 ml of alcohol, then 190 of alcohol per 100 ml of blood. I think itfair to say that he found this description confusing. That is not surprising because the officer’s portion of the file had only been given tohim for review shortly before the trial started.

I accept that he was doing the best he could. [17] Cst. Pickering was asked why he used the earlier reference to percent. He testified that the reason he described the readings as apercent of alcohol per 100 ml of blood is because he looks after other devices such as the ASD and much of that language is “mgpercent” when describing the tolerances of the devices and “I just go back in describing the results of breath tests….”. [18] In cross examination he testified that the first time anyone told him about problems with describing readings in terms ofpercentage was that afternoon when he was advised by Crown.

As I have already stated, this was during the afternoon adjournment andjust before defence was to begin cross examination. He agreed that he was told by Crown to leave out the reference to percentage. Heagreed that when reading the Subject Test earlier, he had no independent recollection of these test results. He had no independentrecollection of Mr. McDonald. This is not surprising because his time with the subject is very fleeting and this occurred a little over ayear previously. [19] This was only the second time he had taken breath samples. [20] Cst. Pickering was a forthright and candid witness, as was Cpl.

Doerr who testified earlier. They both were honest when theycould not recall certain aspects of their dealings with Mr. McDonald that night. Cross examination of Cst. Pickering had not yetcommenced when Crown asked to continue the direct examination to correct Cst. Pickering’s evidence of “mg percent” instead of “mgper ml.”. I allowed him to do so subject to my ruling today. Clearly, Crown is not entitled to ask leading questions of a Crown witnessabout matters in issue in the trial or cross examine his own witness unless permitted to do so such as when a witness is declared adverse or hostile: R. v.

Nicholson (1998), 1998 ABCA 290 , 129 C.C.C. (3rd) 198 (Alta. C.A.); R. v. McCormick (1961), (BC CA), 130 C.C.C. 196 (B.C.C.A.). However, a trial judge has discretion to permit Crown to ask leading questions of his ownwitness when necessary in the interests of justice to do so: R. v. Maynard (1959), 125 C.C.C. 46 (B.C.C.A.). [21] Here, Crown told his own witness how the alcohol levels ought to be expressed and the officer corrected and changed hisevidence accordingly. This is a practice to be discouraged.

However, the officer made a mistake and had only had the benefit of a reviewof his file just before the trial commenced. I am satisfied that allowing this evidence to be corrected is, in this case, in the interests ofjustice so the court has the appropriate evidence regarding Mr. McDonald’s blood alcohol levels. [22] Cst. Pickering was candid that he had only conducted one prior breath sample and was, at the time, only certified some eightmonths before the events of this evening. Cst. Pickering was not able to explain why the device did not meet the criteria of being within20 mg percent.

He explained that the device itself will “truncate” the results. He explained that if there is a reading of 119, theInstrument will read it down to 110. He testified that the 230 reading could have been 221 or it could have been 209 and it comes downto 200. [23] I have no evidence before me about why the Instrument would make a reading that exceeded 20 mg between the first and secondreadings, only that the device, “rounds” the numbers. [24] In giving his evidence, Cst. Pickering was clearly relying on the print out in the Subject Test Report and did not have his ownrecollection. That is not surprising.

Police officers deal with many people and this offence occurred almost one year prior to trial.Therefore, the accuracy of the device is critical. [25] There is no evidence from Cst. Pickering that he specifically performed blank tests as required by the Criminal Code – that wasglossed over very quickly in his direct examination. I have no evidence from him that the alcohol standard was certified by an analyst. The Legal Framework: [26] Mr.

McDonald was charged under the newer driving provisions contained in the Criminal Code, specifically s. 320.14 (1)(b).This provision was recently considered by the Alberta Court of Appeal in R. v. Goldson, 2021 ABCA 193. The history of these changeswas summarized in this manner: [2] On December 18, 2018, a newly enacted s. 320.31 of the Criminal Code, RSC 1986 c C46 came into effect setting out what theCrown must prove to engage the new presumption of accuracy for a breath test.

It is part of the new driving provisions contained in AnAct to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018 c 21[Amending Act].

Section 320.31 applies retrospectively, therefore, the Crown was required to establish the requirements of the newlegislation in the appellant’s trial in 2019. [3] One of the requirements that the Crown must prove in s. 320.31(1)(

a) is that:

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of theanalyses 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 ; [Emphasis added] [ 27 ] Goldson had failed a roadside screening device, was arrested and taken to the RCMP detachment where he was required to provide breath samples to a qualified technician (QT). The results of the breath test were 120 mg. and 130 mg.

He was charged with impaired driving and driving with an illegal blood alcohol limit. [ 28 ] At trial, rather than tendering a Certificate of Analyst, Crown called viva voce evidence from the QT. The QT gave evidence that the alcohol standard is certified by an analyst and that his knowledge of this was derived from a handwritten certificate on the side of the instrument.

He also testified that there was an “approved certificate that’s posted on the wall” and they would not conduct any tests if it was expired. [ 29 ] The trial judge concluded that this hearsay evidence from the QT was inadmissible to satisfy the requirements of s. 320.31(1)(

a) that the alcohol standard was certified by an analyst. Goldson was acquitted. [ 30 ] The

summary conviction appeal court set aside the acquittal and concluded that if the QT could give evidence relating to the conditions set out in ss. 320.31(1)(b) - the 15 minute intervals - and (c) - the rounded results did not differ by more than 20 mg - evidence from the QT about whether the alcohol standard was certified by an analyst must also be accepted for the condition set out in s. 320.31(1)(

a) without the need to tender the Certificate of Analyst. [ 31 ] The Court of Appeal disagreed. In its decision, the court took the opportunity to resolve the uncertainty in the jurisprudence across Canada given the myriad of conflicting decisions that address the

interpretation of s. 320.31 (1)(a). The issue before the court was described thusly: What is the proper

interpretation of “certified by an analyst” in s. 320.31 (1) (

a) of the Criminal Code and must the Crown tender evidence from an analyst, whether viva voce or through a certificate of analyst, to prove the requirements of this section? [ 32 ] The question could also be framed as asking “whether hearsay evidence from the analyst can be included in the Certificate of Qualified Technician” made under this Part”: Goldson , para. 53 . Discussion: [ 33 ] This is the issue squarely before me in this case. The amendments came into effect on December 18, 2018.

The goal of the most recent amendments as they related to impaired driving offences, was designed, among other things, to further streamline the evidence that Crown was required to adduce to establish the offence. These are referred to as evidentiary shortcuts. A Certificate of Qualified Technician, setting out the breath test results, can be filed for the truth of its contents without the need for viva voce evidence. There is also a presumption of accuracy and a presumption of identity.

These presumptions, respectively, obviate the need to call the QT who administered the test or an expert toxicologist to interpret the breath readings to identify the accused’s blood alcohol reading at the time of the offence. [ 34 ] To ensure fairness to an accused and ensure that the breath readings are accurate and reliable, the provisions include a specific list of preconditions that have to be met before Crown can rely on these evidentiary shortcuts. [ 35 ] In Goldson , the court noted that the recent amendments added requirements for a system blank test and system calibration check within 10% of the target value of an alcohol standard that is “certified by an analyst”.

This is in the

section that sets out preconditions for the presumption of accuracy. The language regarding what is contained in the Certified of Qualified Technician has been removed: Goldson , para 62 . [ 36 ] The intent of s. 320.31 is to allow Crown a simple means of proving the presumptions.

In Goldson at paras 73 and 74 , it was explained in the following manner: [73] The revised conditions to trigger the presumption of accuracy and the omission of language in the Amending Act setting out the content of the certificates must be taken to be intentional, leaving the Crown with the ordinary rules of evidence to prove that the alcohol standard was “certified by an analyst” or by way of the statutorily recognized Certificate of Analyst. As the Supreme Court has recognized, the preconditions or elements now specified in s. 320.31 must all be proven, “by certificate or by oral evidence”.

The content of those elements has now changed, but they must still be proven for the Crown to obtain the advantage of the statutory presumption. [74] In our view, this

interpretation is consistent with the purpose of the Amending Act and the intention of Parliament. To require the Crown at the very minimum to tender the Certificate of Analyst at trial, which it must produce to defence under s. 320.34(1) in any event, is hardly an onerous obligation and is consistent with simplifying the law related to proof of BACs. Based on our

interpretation, the conditions will be met if the Crown tenders these two certificates as long as they contain the information set out in s. 320.31(1). This provides the Crown with a very simple and effective means of establishing the presumption. [cite omitted] [ 37 ] Crown provided a number of case authorities in support of its position that hearsay evidence can be utilized, through a QT, to meet the requirement of “certified by an analyst”. All cases, of course, pre date the appellate decision in Goldson . Crown relies on R. v. Wu , [2019] O.J. No. 5000 (Ontario Superior Court of Justice) in which the

summary appeal court justice dismissed an appeal from the lower court’s conclusion that Crown could rely on hearsay evidence which is admissible at common law. In Wu , Crown called evidence from a QT. The court concluded that “in substance, there was sufficient evidence to satisfy the pre-requisite in s. 320.31 of “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”: Wu , para. 16.

[ 38 ] The court in Goldson specifically addressed the case authorities, including Wu , that conclude hearsay continues to be admissible under the amended provisions. At para. 19, an analysis of the underlying reason for the differing approaches to this issue was discussed: Broadly speaking, the authorities that conclude such hearsay is no longer permissible rely on significant changes that have been made to the wording and structure of the breathalyzer provisions to find that this statutory exception to the hearsay rule is no longer available.

By contrast, the authorities that conclude such hearsay continues to be admissible, like the judgment in the court below, rely heavily on the historical cases decided under the predecessor provisions to conclude that the changes to the evidentiary provisions in the Amending Act do not suggest Parliament intended to require direct evidence ( viva voce or certificate) from an analyst on a matter which could previously have been introduced by a QT. [ 39 ] The decision is Goldson is not binding authority upon this court and I am not required to follow it.

However, it has considerable persuasive value and is the first appellate court to consider this specific issue. The decision was thorough and, in my view, has reconciled the divergent case authorities. I adopt the reasoning contained in Goldson and am persuaded that it is consistent with the legislative history of the provisions related to impaired operation of a conveyance.

Parliament’s objective was to simplify the manner in which Crown can establish an offence under s. 320.14 while ensuring that the court would receive reliable and accurate readings of a person’s blood alcohol. [ 40 ] To summarize, “certified by an analyst” as set out in s. 320.31 (1) (

a) of the Criminal Code requires evidence from the analyst regarding certification, either by viva voce evidence from the analyst, or through a Certificate of Analyst. A QT’s evidence about whether an alcohol standard is certified by an analyst is inadmissible hearsay: Goldson , para. 83 . In this case, Cst. Pickering could only refer to the Subject Test Report and give evidence that there was an alcohol standard in the Instrument. Neither the Subject Test Report, nor Cst. Pickering’s evidence establishes that the alcohol standard was certified by an analyst.

Conclusion: [ 41 ] Crown has the burden of proof to establish the presumption that Mr. McDonald’s blood alcohol concentrations were equal to, or exceeded, 80 mg. of alcohol in 100 ml. of blood at the time in question. There is no evidence that the alcohol standard was certified by an analyst and therefore the Crown has not met the evidentiary burden required by s. 320.31 (1) (a). [ 42 ] Crown cannot rely on the presumptions in s. 320.31 (1) and therefore there is no evidence to establish, beyond a reasonable doubt, that Mr.

McDonald’s blood alcohol was equal to, or exceeded, 80 mg in 100 ml. of blood within two hours of operating a conveyance. [ 43 ] Accordingly, I acquit Mr. McDonald on Count 2. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia CORRIGENDUM - Released October 14, 2021 In the Reasons for Judgment dated October 5, 2021, the following changes have been made: [1] Paragraph five should read: At the beginning of the trial, Crown realized that the Certificate of Analyst contained an incorrect lot number and an expiry date that preceded the offence date.

I ruled that a corrected Certificate of Analyst was not admissible. Crown suggested an adjournment to correct this oversight. After considering the prejudice to Mr. McDonald arising from delay, as well as the clear message from the Supreme Court of Canada that trial judges bear responsibility for ensuring that trials proceed in a timely manner, I declined to allow the adjournment. As a result, the trial proceeded without a Certificate of Analyst. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia