2020 QCCQ 3575, 2020 QCCQ 3575

Translated from the original French R. c. Lafontaine 2020 QCCQ 3575 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF JOLIETTE LOCALITY OF JOLIETTE “Criminal and Penal Division” No.: 705-01-104217-189 DATE: July 8, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC COTÉ JCQ ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

MICHEL LAFONTAINE Accused ______________________________________________________________________ DECISION ______________________________________________________________________ [ 1 ] Michel Lafontaine (the accused) was tried on charges of operating a motor vehicle while his ability to do so was impaired by alcohol and operating such vehicle with a blood alcohol level over the legal limit. [ 2 ] By the end of its evidence, counsel for the prosecution conceded that she had not proven the essential elements of the offence under the first count.

Therefore, the Court acquitted the accused. [ 3 ] Counsel for the accused is now filing a motion for non-suit, arguing that the prosecution has not established the accused’s blood alcohol level at the time of the events. More specifically, she claims that the prosecution cannot benefit from the presumption found in

section 320.31(1) (

a) of the Criminal Code , since it was unable to establish the target value of the alcohol standard used for the system calibration checks of the instrument employed to collect the accused’s breath samples. [ 4 ] Counsel for the prosecution contends that the documents filed as Exhibit P-3, en liasse, are to the contrary. As a result, she claims that the evidence giving rise to the presumption found in the statutory provision at issue has been established in this case. BACKGROUND [ 5 ] At trial, only Officers Mousseau-Massé and Paquette of the Sûreté du Québec testified.

The Court accepts the following: [ 6 ] On February 18, 2018, they were on patrol in the town of Lavaltrie. [ 7 ] At about 1:00 a.m., they were stopped at the corner of des Goélands and Notre-Dame when they saw the vehicle operated by the accused drive against traffic on Notre-Dame over a distance of 200 to 300 feet (100 m).

The driver of the vehicle appeared to be trying to get onto des Goélands and missed the turn, narrowly avoided the patrol car and rammed into a snow bank on the property of a residence. [ 8 ] During his intervention with the accused, Officer Mousseau-Massé obtained reasonable grounds to believe that the accused had operated his motor vehicle while his ability to drive was impaired by alcohol.

He therefore arrested him, read him is constitutional rights and ordered him to accompany him so that he could provide breath samples by means of an approved screening device. [ 9 ] Once at the Sûreté du Québec police station, Officer Nancy Bordeleau, a qualified technician, took the breath samples provided by the accused using an approved instrument. Those samples revealed a blood alcohol concentration of 226 mg per 100 ml of blood and of 225 mg per 100 ml of blood. [ 10 ] The results are included in the “Qualified Technician’s Certificate” filed as Exhibit P-3, en liasse, at page 1.

Officer Bordeleau did not testify. ANALYSIS

[ 11 ]

Section 320.31(1) (

a) of the Criminal Code , in force since December 18, 2018, reads as follows: If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses 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; [ 12 ] Furthermore, section 32(2) of

An Act to amend the Criminal Code provides that this new provision applies retroactively to proceedings instituted before its coming into force. [ 13 ] Thus, to benefit from the presumption created by this provision, the prosecution must establish, among other things, the target value of the alcohol employed during the calibration tests of the instrument: R. v. Flores-Vigil , 2019 ONCJ 192 ; R. c.

Bélange r, 2019 QCCQ 8906 at para. 47 . [ 14 ] What is the case here? [ 15 ] First, other than the previously mentioned “Qualified Technician’s Certificate”, two “printouts” from the approved instrument were filed into evidence as Exhibit P-3.

They contain the following information: [ translation ] ✔ DataMaster DMT-C, serial: 200817 ✔ Alcohol Standard: 100 ✔ Company: Laboratoire Atlas Inc. ✔ Lot No.: 13JE ✔ Expiry date: 2020/05/31 ✔ Changed by: Nancy Bordeleau, badge number 13328 ✔ Dated: 2018/02/18 at 1:32 a.m. ✔ Valid until: 2018/03/04 at 1:32 a.m. ✔ Sequence of use: 01/50 [ 16 ] In addition, a sheet titled “Change of Solution” was also adduced into evidence.

That sheet contained the following information: ✔ DataMaster DMT-C200817 ✔ Sequence number: 200817-449 ✔ Date: 2018/02/18 ✔ Time: 1:52:29 a.m. ✔ Information – Standard Alcohol Solution ✔ Date of chg: 2018/02/18 1:32 a.m. ✔ Valid until: 2018/03/04 1:32 a.m. ✔ Company: Laboratoire Atlas Inc. ✔ Lot No.: 13JE ✔ Target value: 100 ✔ Expiry date: 2020/05/31 ✔ Name of Qt: Nancy Bordeleau ✔ QT badge number: 13328 ✔ NB 13328 1:54 a.m. that the Court considers to be Officer Bordeleau’s initials, badge number, and the time the information was recorded. [ 17 ] Last, an “Analyst’s Certificate” was attached (Exhibit P-4).

It indicates that he analyzed sample “Laboratoire Atlas Inc. Lot 13JE”, and that that sample was suitable for use with an approved instrument. That certificate does not indicate, however, the alcohol

concentration of the sample at issue. [ 18 ] Counsel for the prosecution is of the view that, in light of those documents, the target value of the alcohol standard used in this case was 100 mg%, and as a result, the presumption set out in

section 320.31(1) of the Criminal code should apply. [ 19 ] With respect, she is wrong. [ 20 ] The evidence does not establish where Officer Bordeleau got the information to the effect that the target value of the alcohol standard used was 100 mg%. [ 21 ] That evidence could have been established by filing an analyst’s certificate indicating the concentration of alcohol in the alcohol standard used (see R. v. Yip-Chuck , 2019 ONCJ 367 ; R. c.

Bélange r, 2019 QCCQ 8906 at para. 48 ) or by the testimony of the qualified technician who replaced the alcohol standard stating that he or she read the bottle’s label concerning the concentration of alcohol it contained or that he or she consulted the analyst’s certificate revealing that information: R . c. Whaley (5 February 2020), C.Q. Joliette 705-01-106574-181, François Landry J.C.Q. [ 22 ] On the other hand, in R. c.

Lupien (23 September 2019), Sorel-Tracy, C.Q. 765-01-030183-160, my colleague Bisson J. held that a document issued by a company indicating the target value of the alcohol standard it had produced was insufficient. [ 23 ] Furthermore, the viva voce evidence from that same qualified technician, based on his or her work experience and/or training, that the alcohol standard is always 100 mg % can also be sufficient in certain circumstances: R . v. Porchetta , 2019 ONCJ 244 ; R . v. Does , 2019 ONCJ 233 ; R . v. Pelaia , 2019 ONCJ 676 at paras. 53 , 54; R. v. Patel , 2019 ONCJ 544 ; R. v.

Yip-Chuck , 2019 ONCJ 367 . [ 24 ] That said, in this case, it is not necessary for the Court to rule on either of these situations because no evidence was adduced concerning the source of the information on the target value of the alcohol standard used. The indication “100” on the printouts from the approved instrument or on the sheet concerning the change of solution are clearly not sufficient. [ 25 ] Besides, counsel for the prosecution ultimately acknowledged it. [ 26 ] Having failed to establish all of the conditions set out in

section 320.31(1) (

a) of the Criminal Code , the prosecution therefore cannot benefit from the presumption therein. FOR THESE REASONS, THE COURT: DISMISSES the motion for non-suit filed by counsel for the accused; DECLARES that the prosecution cannot benefit from the presumption in

section 320.31(1) of the Criminal Code ; DECLARES that the prosecution did not meet its burden of proving the accused’s guilt; ACQUITS the accused of the charge against him. __________________________________ ÉRIC COTÉ J.C.Q. Mtre Han-Catherine Morin Mtre Isabelle Poulin Director of Criminal and Penal Prosecutions Counsel for the Prosecutrix Mtre Sophie Beauvais Mtre Rose-Marie Picard Hamelin Avocats Counsel for the accused Dates of hearing: September 6, 2019, November 25, 2019, February 7, 2020, July 8, 2020