Her Majesty the Queen - v. -, 2016 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 051 Date: April 29, 2016 Information: 43843926 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mitchell James Bone Appearing: Mr. C. Bliss For the Crown Mr. M. Brayford, Q.C. For the Accused JUDGMENT B.M. SINGER , J Introduction [ 1 ] Mitchell Bone was charged the on or about the 3 rd day October, 2015, he operated a motor vehicle while impaired by alcohol or a drug and while driving with over .08 mg.% alcohol in his blood.

The Crown sought to prove the second charge by filing the Certificate of a Qualified Technician pursuant to section 258(1) (c) (iv) of the Criminal Code . The sole issue in this case was whether the analyses could be proof of the accused’s blood alcohol reading as the defence alleged there was evidence tending to show that the instrument was improperly operated.

[ 2 ] Constable Tilk, a rookie police officer in training, with Constable Wiebe, testified that on October 3 rd , 2015, at about 2:42 a.m. they were dispatched to the area of MacDonald ’ s Restaurant on Idelwyld and 39 th Street in the City of Saskatoon. There had been a report of an impaired driver operating a black Chevrolet truck. [ 3 ] When they arrived in the area, they spotted the suspect truck and parked behind it as it had pulled into the entranceway of the Travelodge Hotel, just off Circle Drive.

They had observed nothing untoward in the operation of the vehicle. [ 4 ] Constable Tilk approached the driver ’ s side of the truck and identified the accused as the operator. He could smell alcohol coming from the vehicle and noted that the accused had red and glassy eyes. The accused apparently had no difficulty retrieving his license and showing it to the officer. [ 5 ] The officer requested the accused exit his vehicle and walk back to the police car. The accused showed no balance, dexterity or speech difficulties as is often observed in impaired drivers.

The accused ’ s breath smelled of alcohol and he admitted having 3 drinks, the last about 5 minutes before the arrival of the police. [ 6 ] Officer Tilk read the accused the ASD demand and at 3:05 a.m. the accused registered a fail on the ASD. The officer took that to mean that the accused ’ s blood alcohol level was probably greater than 100 mg.% and on that basis arrested Mr. Bone for impaired driving and made a demand for a suitable breath sample. They went to the police station and the accused was booked.

They then waited in the observation room for the mandatory 15 minutes after which he blew into an approved instrument which registered a reading of 1.50 mg%. He was then returned to the observation room. He was to be held there for a further observation period of at least 15 minutes. [ 7 ] During this observation period, the officer heard the accused make a small burp or belch. His mouth had been closed so the officer described it as a “ polite ” burp. Officer Tilk knew that in his training he was to observe if the suspect put anything in his mouth, burped or regurgitated any stomach contents.

He had been taught that such behaviour might affect the readings of the approved instrument. He therefore immediately radioed the technician to report the burp. [ 8 ] The technician came to the hallway outside the room and talked to Constable Tilk. He recalls that the conversation was short and that he told the technician that the suspect had made a “ small closed mouth belch ” .

He told her that he did not think that the kind of burp he heard had brought up any stomach contents but later in cross-examination he admitted that because the accused had been polite, and had his mouth closed, that the actual strength of the burp or belch was camouflaged.

He also agreed that as a trained ASD operator, he knew that if there is any burp or belch, the observation period should be restarted for at least a further 15 minutes. [ 9 ] The technician, Constable McNeil, testified that after talking with Constable Tilk, she decided that restarting the observation period was unnecessary and so about 7 minutes later she had the accused supply a sample of his breath, this time the reading was 1.40 mg%. [ 10 ] The technician had received her training about 5 or 6 months before this evening.

She testified that in regard to the observation period, she had learned in her training that the purpose of the observation period was to make sure that the suspects did not put anything in their mouths or that they did not regurgitate any stomach contents or burp or belch. She had learned that a “ wet ” burp could affect the readings, as any mouth alcohol would give a much higher reading.

However, she explained that the instrument had a fail/safe device to detect mouth alcohol and that if any were detected the machine would shut down. [ 11 ] She recalled being summoned by Constable Tilk and remembered being told that the accused had burped during the 15 minute observation period. After hearing Constable Tilk describe the burp, she decided it was probably not a “ wet ” burp, where stomach contents were regurgitated into the mouth and it would therefore be alright to proceed with the second test without waiting the 15 minute observation period.

On the stand the officer quoted from her training materials to justify her belief that it was proper to continue. She read “ Theoretically a “ wet burp ” , where stomach contents are brought into the mouth, could contaminate the mouth with alcohol. The probability that a wet burp occurring twice, at least 15 minutes apart and producing two falsely high results that agree

within 20 mg% of each other is extremely low”. [12] However, on cross-examination the technician agreed that the training material made it very clear that if a suspectburps, the proper procedure is to restart the waiting period and that the same material emphasizes the importance of following the properprocedure. She agreed that her training left her no discretion; if a suspect burps, the observation period must restart.

As the material saidon page D-3 without any equivocation; “Restart the observation period if the subject is not maintained within close proximity and in thefield of view of the observer or if the subject places anything in their mouth, burps or vomits”. [13] She agreed with the suggestion that she did not follow the correct procedure and therefore she agreed that she cannotsay that the second sample is a suitable sample according to her training. [14] The same training material suggested at page D-2 “While most breath testing instruments have methods to detect thepresence of mouth alcohol in the breath sample, they are not 100% effective”.

The technician agreed. She also testified that there wasno particular reason that prevented her from waiting a further 15 minute observation period. [15] As was noted, on re-examination this witness stated if, in her opinion, the 2nd test was a proper breath test and she thought it was because the 2nd test was within 20 mg% of the 1st test. This concluded the evidence on the trial.

Issues [16] The Crown invited me to acquit the accused on the first count, impaired driving, and I did. [17] The defence suggested that the failure to restart the observation period after the burp is evidence that tends to show,by raising a reasonable doubt, that the instrument was operated improperly and so the Crown does not have the benefit of thepresumption in section 258 (1) (c) (iv). That

section of the Code has been read down by the Supreme Court and somewhat explained inthe case of R v St.

Onge Lameroux, 2012 SCC 57 , 2012 3 SCR 187 and can now be read as follows: . . . evidence of the results of the analyses so made is conclusive proof that the concentration of the alcohol in the accused’s blood both atthe time when the analyses were made and at the time when the offence was alleged to have been committed …in the absence ofevidence tending to show that the approved instrument was malfunctioning or was operated improperly… Position of the Crown [18] The position of the Crown is that the case before me is exactly the same as the case of R v So, 2014 ABCA 451, 2014 AJ No. 1442 (C of

A) further suggesting that the So case correctly answers the issue before me. In So the appellantargued that the manual obliged the breathalyzer technician to delay taking and testing the breath samples because the appellant had beenburping. The technician did not know of the burps and did not delay testing. The trial judge, according to the appellant court, found noevidence relating to how the failure of the technician to observe the appellant or the failure to wait a further period of time following theburping necessarily rendered the breath test results inaccurate or unreliable.

That Judge held, at law, that improper operation with nodiscernible effect on the integrity of the results should not warrant the rejection of the results if the test results shown in the Cerificate ofAnalyses are accurate [para 20].

It should be noted, however, the Court of Appeal observed that the trial judge went on to conclude thathad the technician testified and expressed concerns with the validity of his work product when made aware of the appellant’s burping,his testimony might have raised the required reasonable doubt. [paragraph 22] [19] The Alberta Court of Appeal agreed with the trial judge, that evidence of a failure by the technician to make surethat the accused’s breath was free of mouth alcohol was not evidence to show that the instrument was operated improperly. “For anaccused to rebut the presumption, evidence relating directly to some deficiencies in the operation .. must raise a reasonable doubt on thereliability of the breath test results.” [para33] The Alberta Court of Appeal relied on St.

Onge and concluded that the case requires not

only evidence that the instrument was operated improperly but also evidence that the improper operation resulted in an inaccurate reading. [ 20 ] Relying on So the Crown suggests that while the technician did not follow the manual and the training procedures and that there may have been some deficiencies in the operation of the instrument, there is no evidence before me that the improper operation would cause the instrument to be unreliable. Indeed he argued that when all of the evidence is examined, the reliability of the results is without question.

He points to the 2 nd test being within 20 mg% of the 1 st reading and the fail/safe used to detect mouth alcohol. He also pointed out that earlier the accused had failed an alert test. Position of the Defence [ 21 ] The defence relies on the facts that the training material requires a technician to be scrupulous in the operation of the instrument. That material emphasizes that if a person burps the observation period must be recommenced. There is no discretion allowed that would permit the technician to proceed as she did in this case.

Mouth alcohol adversely affects the readings and the fail/safe device on the instrument is not 100% accurate. In this case even the technician agreed that the result of the 2 nd test was not a suitable sample. [ 22 ] The defence relies on the Saskatchewan Queen ’ s Bench decision of R v By, 2015 SKQB 36 .

In that case, the technician gave evidence that it was a mandatory part of the procedure to observe the suspect for at least 15 minutes prior to the administration of the breath test to ensure no mouth alcohol was present because it is possible that a burp or belch could bring alcohol to the mouth that would falsely elevate the result. In the By case there was no evidence that the suspect actually burped. However, the Quuen ’ s Bench judge found that he was not observed for almost half of the required observation period. The learned appeal judge overturned the trial judge who had specifically relied on R v So .

It was enough that the suspect had not been under observation and could have burped to raise a reasonable doubt whether the machine was operated improperly. [ 23 ] The learned Queen ’ s Bench judge disagreed with So and the

interpretation the Alberta Court of Appeal placed on St.Onge, . As he says: The presumption of accuracy makes sense because the science confirms that breathalyzer results are accurate if the breathalyzer is … properly operated. “ He goes on to explain, “ since accuracy and reliability depend on the properly operated and well-functioning machine, evidence of deficiencies in the functioning or “ test process ” which could affect accuracy or reliability can be sufficient to rebut the presumptions. Indeed, only such evidence will do so.

Nowhere does the Court suggest that there must be additional evidence linking deficiency to a potential inaccuracy … as opposed to a burden on the Crown to prove that there is no such link. [paras 157 and 158]. Analysis [ 24 ] In this case I must accept the law as expressed by our Court of Queen ’ s Bench. That Court specifically commented on R v So and interpreted the law in a different fashion.

It specifically held that evidence which tends to show that the machine was operated improperly is all that is required, to raise a reasonable doubt as to the accuracy of the analysis, if the Crown does not show that the improper operation had no effect on the accuracy of the readings. Furthermore there was the admission of the technician that while she believed the analysis to be accurate, that is the machine functioned correctly, she could not say that the second sample was proper, in other words that the machine was operated properly.

I agree with her. [ 25 ] In the case before me the evidence is that the technician did not wait the mandatory 15 minutes even though she knew the suspect had burped, contrary to all her training. The analysis of the accused ’ s breath by the Intoxilyzer is dependent upon the technician properly operating the machine and not second guessing her training. Thus, there is evidence before me that raises a reasonable doubt as to whether the instrument was operated properly.

This coupled with the fact that the accused showed none of the usual signs of impairment, either to the arresting officer or the technician, other than blood shot and glassy eyes and the smell of alcohol from recent consumption, leads me to conclude that the Crown has not proven its case beyond a reasonable doubt. The accused is therefore not guilty.

____________________ B.M. Singer, J