R. v. Pelletier, 2014 ONCJ 710

Information No. 14-1400 Citation: R. v. Pelletier , 2014 ONCJ 710 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MAXIME PELLETIER R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P.F. BAND On December 2, 2014 at BRAMPTON, Ontario APPEARANCES: A. Lepchuk Counsel for the Crown B. Starkman Counsel for M. Pelletier

ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Transcript Ordered: December 9, 2014 Transcript Completed: December 18, 2014 Notified Ordering Party: December 22, 2014 Legend [ sic ] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically.

TUESDAY, DECEMBER 2, 2014 ...WHEREUPON OTHER MATTERS WERE SPOKEN TO. THE COURT: Yes. Okay. All right. Mr. Starkman, good morning. MR. STARKMAN: Good morning. THE COURT: Mr. Malko-Pelletier. MR. STARKMAN: He’s coming forward. THE COURT: Thank you. Yes. Good morning. MS. LEPCHUK: Good morning, Your Honour. THE COURT: So, this is going to be my reasons for judgment with respect to Mr. Maxime Malko-Pelletier. I’d like to begin by thanking counsel for their submissions, and we’ll proceed.

The introduction is this; R E A S O N S F O R J U D G M E N T BAND, J. (Orally): At approximately 10:30 p.m. on Super Bowl Sunday 2014, Constable Gill saw Mr. Malko-Pelletier leave the parking lot of a licenced restaurant in a car. Constable Gill saw the car swaying, or fishtailing, and stopped it to check on Mr. Malko-Pelletier’s sobriety. As the investigation progressed, Mr. Malko-Pelletier blew into an approved screening device and registered a fail. He was arrested and taken to the police station to provide samples of his breath into an approved instrument that was operated by P.C.

Darcy, a qualified breath technician. The results were both over the legal limit and Mr. Malko-Pelletier was charged with the offence of driving with excess alcohol, or “over 80”, as it is known. The Issue: There is only one issue in this case: Mr. Starkman argues that P.C. Darcy’s failure to perform a self-test when preparing the approved instrument to receive Mr. Malko-Pelletier’s breath samples, as recommended by the Centre of Forensic Sciences training manual, gives rise to a reasonable doubt about the reliability of the test results.

If so, then the Crown loses the benefit of the presumptions that are provided by

Section 258 of the Criminal Code . There being no expert toxicologist to explain the results, it follows that Mr. Malko- Pelletier must be acquitted. The Facts: P.C. Darcy testified that he had prepared the approved instrument for use with Mr. Malko-Pelletier. He conducted a diagnostic check and calibration check, and concluded that the approved instrument was in proper working order. He then explained the numerous steps that the instrument takes before accepting breath samples. Mr. Malko-Pelletier’s test results were 107 milligrams of alcohol per 100 millilitres of blood, and 97 milligrams percent, respectively.

In cross-examination P.C. Darcy agreed that the CFS manual recommends three quality assurance tests: a diagnostic check, a calibration check, and a stand-alone breath test. He explained that he did not perform a stand-alone self-test because he was taught by a very experienced breath technician that such a test was not necessary when there are no concerns about the instrument such as might arise in a fail to provide scenario. For purposes of these reasons, it is important to quote the most relevant portions of P.C. Darcy’s cross-examination.

They are as follows: Question; “Do you agree with me that in order to operate the instrument properly you are expected to follow the recommendations of the Centre of Forensic Sciences?” Answer; “Yes. They are recommendations, but it’s best practice.” Question; “All right. And in order to operate the instrument properly you’re expected to follow those recommendations; do you agree?” Answer; “Yes.” Concerning P.C.

Darcy’s explanation that a self-test is not necessary outside the fail to provide scenario the following exchange took place: Question; “Do you agree with me that the manual doesn’t, sort of, draw this distinction between doing the stand-alone breath tests sometimes? It just speaks to the three quality assurance tests to be done; do you agree?” Answer; “Yes, and it - and it is recommended.” P.C. Darcy then added that, “Common sense would dictate that if - well, in this case Mr. Pelletier was able to provide a suitable sample into the instrument.

There’s no issue with that portion of the instrument.” The Applicable Legal Principles:

Section 258 of the Criminal Code . Where the Crown has proved that the preconditions set out in Section 258(1)(

c) have been met, the results of the breath tests are “conclusive proof” of the accused person’s blood alcohol concentration at the time of driving unless there’s evidence intending to show that the instrument was malfunctioning or operated improperly. In R. v. St. Onge-Lamoureux , the Supreme Court of Canada explained the meaning of Section 258(1)(c).

At paragraph 37 the court wrote that “Evidence relating directly to the instrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzer test results.” At paragraph 41, the court recognized that “The results will be reliable only if the instruments are operated and maintained property, and that there might be deficiencies in the maintenance of the instruments or in the test process.” However, the Code requires “That evidence tending to cast doubt on the reliability of the results related directly to such deficiencies.” As a result, the accused must not simply show that a deficiency is possible “But raise a real doubt that the instrument was functioning or operated properly.” And that’s at paragraph 53.

At paragraph 79, the court indicated that “Accused persons will rarely succeed in raising a reasonable doubt that the instrument was functioning or was operated properly.”

Failure to Follow the Recommended Procedures: The authorities indicate that the defence does not raise a reasonable doubt simply by pointing to an instance of operator error, or failure to follow recommended procedures. Rather, to be capable of raising a reasonable doubt about the reliability of the test results, the error must be of some consequence. R. v. Hoogendoorn , [2013] O.J. No. 4305 : Mr. Starkman was counsel in R. v. Hoogendoorn where he advanced an argument similar to the one he has made on behalf of Mr. Malko- Pelletier.

In rejecting that argument Justice Douglas relied on a number of authorities, including the following: R. v. Ahmed , [2010] O.J. No. 1500 (OJ) : In R. v. Ahmed , Justice Tuck-Jackson characterized the recommendations of the Canadian Society of Forensic Sciences Committee as a statement of “best practices.” They do not set out evidentiary or legal prerequisites for the successful prosecution of a drinking and driving charge. She then added that any deviation from them should not be seen to necessarily place the reliability of any particular test result in jeopardy. R. v. Ketler , [2013] O.J.

No. 3081(OCJ) : In R. v. Ketler , Justice Campbell wrote that failure to follow a recommended procedure for taking samples of breath will not automatically equate to operator error. It is insufficient to point to a procedural error where that error is of no consequence. See paragraphs 32 to 33. R. v. Ho , [2014] O.J. No. 4019 (SCJ) : R. v. Ho is a very recent case that was released after R. v. Hoogendorn . While it deals with best practices related to approved screening devices, rather than approved instruments, it nonetheless bears mention.

Justice McIsaac wrote that “best practices” are not, and never have been, a requirement in law. Analysis: Mr. Starkman’s argument focused on the fact that P.C. Darcy answered “Yes” to the question: “And in order to operate the instrument property, you’re expected to follow those recommendations; do you agree?” That answer must be read in the context of the evidence as a whole. In his evidence in-chief, P.C. Darcy testified that he operated the instrument in accordance with his training and manufacturers’ specifications. On two occasions in cross-examination P.C.

Darcy qualified his answer by explaining that the CFS manual’s recommendations were just that, recommendations or best practices. Even if I’m wrong about that and P.C. Darcy’s response must be taken as a categorical concession that a technician who does not conform to the recommendations of the CFS does not operate the instrument properly, I’m not bound to accept it and blindly act upon it. For the purposes of the recommendations contained in the CFS manual, P.C. Darcy is not an expert and was not qualified as such. Assuming that the question in cross-examination was based on a complete and accurate

summary of the CFS manual’s recommendations on this topic, P.C. Darcy’s response does little more than parrot the manual. It is abstract and does not tie the issue to the tests he administered on Mr. Malko-Pelletier. His response is entitled to no more weight than the manual itself. Therefore, what I’m left with is the fact that P.C. Darcy performed two of the three quality assurance tests that are recommended by the

CFS manual. The authorities I have listed make it clear that this, in and of itself, does not raise a reasonable doubt, and I find those authorities persuasive. But the crucial point in this case is this: there is nothing to suggest that P.C. Darcy’s deviation from the CFS manual’s recommendations was of any consequence. To the contrary, I believe P.C. Darcy that he operated the instrument according to his training and the manufacturers specifications, and I found his explanation that the circumstances did not call for a self-test convincing. Only two attempts were required and both yielded suitable samples.

In addition, the test record printout did not raise any concerns and the results were not erratic. As a result, I have no doubt that P.C. Darcy operated the instrument properly and that the test results were reliable, and a conviction will be entered. THE COURT: Are you prepared to proceed to the next stage today, counsel? MR. STARKMAN: Yes, Your Honour. THE COURT: Okay. MR. STARKMAN: No record, I don’t believe. MS. LEPCHUK: I’m only seeking the minimums, Your Honour. MR. STARKMAN: Yeah. So, he’s 26 years of age. He’s a nightshift foreman for a truck leasing company. Earns $25 an hour. He’s single, no children.

Readings are clearly at the lower end, triable issue, joint position for the minimum. THE COURT: Right. Okay. All right. Mr. Malko-Pelletier, so I’ve heard that you have no record. This is probably out of character. Nonetheless, I’m required by law and by the joint position of the parties to - to impose a minimum fine of $1,000 and how long would you like to pay that, then? And you can confer with Mr. Starkman. MR. STARKMAN: Would Your Honour allow him four months to pay that? THE COURT: Yeah. That’s fine.

And in addition to that I’m required by law, as well, to prohibited you from driving anywhere in Canada for a period of 12 months. And so, if you do have your driver’s licence, please hand it to Madam Clerk. MR. STARKMAN: Thank you, Your Honour. I’ll take him to where he needs to sign his documents. THE COURT: Thank you very much. MR. STARKMAN: If I and my client can be excused then? THE COURT: Yes, and four months to pay the surcharge as well? MR. STARKMAN: Yes, please. THE COURT: Very good. Okay. Thank you very much. MR. STARKMAN: Thank you. I thank my friend. THE COURT: All right.

You’re welcome. ...WHEREUPON OTHER MATTERS WERE SPOKEN TO. FORM 2 Certificate of Transcript

Evidence Act, subsection 5 (2) I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v. Maxime Pelletier in the Ontario Court of Justice, 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111 103 20141202 092130 30 BANDP, which has been certified in the Form 1 by K. Evans. __________________________ (Date) ___________________________ (Signature of authorized person(s)) Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR, ACT Hill Transcription Inc.

Certified Court Reporter, CRAO Internationally Certified Digital Reporter, IAPRT Authorized Court Transcriptionist ba.reporter365@gmail.com hilltranscription.com PLEASE NOTE: Any copies of this transcript are unauthorized and are in direct violation of Ontario Regulation 94/14 , Courts of Justice Act, April 19, 2014. If additional copies are required, please contact the above noted reporter. This transcript is a true certified copy bearing the original signature in blue ink.