R. v. Mahaffy, 2017 ONCJ 115

ONTARIO COURT OF JUSTICE CITATION: R. v. Mahaffy, 2017 ONCJ 115 DATE: February 2, 2017 Information No.: Sudbury 13-2928 BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL MAHAFFY Before Justice A.L. Guay Heard on June 9, October 20 and 21, 2014 February 2 and 6, March 23, April 1, August 13 and 20, October 13, 14, 15, 2015 February 9 and 19, April 5, October 6, November 1 and 17, December 1, 2016 And February 1, 2017 Reasons for Judgment released on February 2, 2017 Leonard Kim ........................................................................................... counsel for the Crown P.

Berk Keaney and Michael Venturi ................... counsel for the accused Michael Mahaffy GUAY J.: The Charge [ 1 ] The accused was charged that on August 20, 2013 he drove his motor vehicle with more than 80 mg of alcohol in 100 mL of blood in his body contrary to section 253(1) (

b) of the Criminal Code . The accused put the Crown to the strict proof of this accusation. The accused alleges that his

section 8 Charter rights were violated by the police at the time of his arrest and asked that the roadside screening device (the Alcotest 7400 GLC) test results as well as his breath test results from the Intoxilyzer 8000 C be excluded from evidence for that reason. In this respect, the accused also contends that both the roadside screening device and the Intoxilyzer 8000 C instruments were not operating properly at the time he was tested thereby producing information relating to his blood alcohol content which is both unreliable and inaccurate and must therefore be rejected. The accused further alleges that his

section 10(

b) Charter rights were infringed when the police involved in his apprehension and testing failed to proceed with his testing within the stipulated time frames. I dealt earlier with this matter as well as with the accused’s alleged

section 11(

b) Charter rights and will not do so again here. [ 2 ] The evidence in this very lengthy trial was spread over some 18 days and can be divided into two basic categories. Firstly, there is the police evidence related to the apprehension of the accused and his subsequent breath testing. Secondly, there is the expert forensic evidence from both the Crown and the defence.

The expert evidence deals largely with the functioning and reliability of the breath analysis machine, in this case the Intoxilyzer 8000 C (serial number 5151) and its accompanying instrument, the Guth Laboratories Simulator 2100 (serial number DR6136). I will deal first with the apprehension, arrest and breath test evidence and then with the expert forensic evidence last.

Apprehension and Breath Testing [ 3 ] At 2:46 a.m. on August 20, 2013, Constable Sherry Young heard a radio dispatch alleging that an intoxicated person had just left the Canadian Tire gas bar located at Algonquin Square in the City of Greater Sudbury’s south end. The caller gave a description of the driver and the vehicle, noting that it was heading in a northbound direction on adjoining Regent Street. Within minutes of hearing the broadcast, a vehicle matching the description given by the caller, a red-coloured Jeep Cherokee, passed the very spot where Constable Young had been surveilling ongoing traffic.

Believing that the vehicle and driver were those identified in the radio dispatch, Constable Young immediately gave chase to the vehicle, finally catching up with it about one block from the driver’s residence on Moonrock Avenue. The information she received about an intoxicated driver aside, it was Constable Young’s view that the vehicle matching that description was speeding. She therefore had more than enough grounds on which to pursue it. Constable Young testified that the vehicle driven by the accused reached a speed of 80 km/hr. on a stretch of Regent Street she was observing.

The posted speed limit in that area is 60 km/hr. Constable Young stated that she had had no opportunity to look at the name of the street where the accused made his first left turn as she was driving too rapidly trying to catch up with him. She further noted that once on Moonrock Avenue, she activated her emergency lights in order to signal the accused to stop. She found that it took him longer to do so than was typically the case in other traffic pursuits by her when she had turned on emergency lights.

Challenged on this point, she, a police officer with 12 years’ experience with the Greater Sudbury Police Service, clung to her view that the accused ought to have stopped his vehicle more quickly than he did. [ 4 ] Of note, the very first question she put to the accused was whether he was in a hurry. Challenged on her time estimate respecting how long it took her to pursue and arrest the accused, Constable Young stated that she had followed the accused’s vehicle and that while doing so had herself reached the speed of 80k/hr.

While unable to answer how she could have closed in on the accused’s vehicle while moving at the same rate of speed as he was, it is clear that the accused’s vehicle had had to slow down upon reaching the intersection of the first left-hand turn it made onto Telestar Avenue. This was evidently how she was able to close in on it.

Constable Young testified that she briefly lost sight of the accused’s vehicle as it made a second left-hand turn onto Moonrock Avenue. [ 5 ] I accept Constable Young’s evidence that the accused’s vehicle was speeding before she stopped it and find that she was within her legal rights to stop it. [ 6 ] Constable Young testified that once the accused’s vehicle had been brought to a stop, she approached its driver side and began questioning the accused. She said that initially she could not smell alcohol, it being a windy night and the driver then being seated in his vehicle.

Within a short time of conversing with the accused, she breached what she referred to as the window “threshold” between herself and the accused, recalling that it was at that time that she smelled alcohol emanating from his breath. I find that her reason for doing so was that she was operating under the suspicion that the accused had been consuming alcohol and that, if so, she would notice the odour of alcohol coming from him. Asked how far she was away from him when her discussion with him took place, she estimated her distance from him at about 20 inches.

She described the smell of alcohol emanating from his breath as not being strong and being weak. Later, when in her cruiser, Constable Young found the smell of alcohol emanating from the accused to be much stronger. I find, however, that it was Constable Young’s initial observation of alcohol on the accused’s breath which prompted her to ask the accused whether he had been drinking. He told her that he had.

Constable Young found the accused’s speech was slurred in that it appeared to be very slow and concentrated. [ 7 ] At about three minutes or so after she stopped the accused (i.e. 2:48 a.m.), Constable Young had formed a reasonable suspicion that the accused had been drinking and driving and asked him to provide a sample into an approved roadside screening device pursuant to section 254(2) (

b) of the Criminal Code . As no screening device was available in her cruiser, she called headquarters for one. At 3:02 a.m. and after checking its calibration, Constable Young obtained from the accused the required breath sample. It registered a “Fail”. [ 8 ] In her evidence, Constable Young explained that roadside screening instruments were calibrated by officers of the Greater Sudbury Police Service. On the basis of the calibration sticker she found affixed to the instrument, she believed that it had been recently calibrated.

As it turned out, however, the sticker mistakenly indicated that the instrument had been calibrated on October 14, 2013. This would have put the screening instrument’s last calibration almost 2 months after the date on which she was using it, August 20, 2013. I find that this was obviously an error and that there was likely a mistake either with the month or year of calibration. The evidence would show that the manufacturers of the device recommended that it be calibrated every two weeks.

If the device was out of calibration at the time Constable Young used it, which I doubt given the policy in effect at the Greater Sudbury Police Service with respect to calibration of such devices, there is some argument that its results were therefore unreliable and not receivable in evidence. It is clear that the officer believed that the instrument was in good working order and that she relied on it and the information gathered from her personal observations to conclude that she had reasonable and probable grounds to charge the accused under section 253(1) (

b) of the Criminal Code . [ 9 ] The right of a police officer at the scene of a suspected drinking and driving offense to ask a suspect for a breath sample pursuant to section 254 (2)(

b) of the Code does not place a duty to him or her to obtain such a breath sample in every situation. In the opinion of the officer one may be required where he or she has a doubt about a suspect’s level of impairment or simply because he or she may wish to have additional confirmation that the suspect has been consuming alcohol in excess of the legal limit.

I suspect that it is good practice in many cases for officers investigating suspected drinking and driving offenses to ask a suspect to provide a breath sample for immediate analysis in order to provide evidence of a more solid objective belief on their part of a suspect’s impairment.

Their decision in this respect, then, is a judgment call on their part as to the merit or weight of the evidence justifying their suspicion. [ 10 ] Should the results of the roadside screening device used by Constable Young be deemed invalid as a result of the inability to verify the date of its last calibration, I nevertheless find that Constable Young had reasonable and probable grounds to believe that the accused’s ability to drive was impaired by alcohol and, therefore, to ask him to accompany her to police headquarters to provide two required samples of his breath for analysis into an Intoxilyzer 8000 C instrument.

What is required of a police officer in such circumstances is not proof beyond a reasonable doubt but simply that he or she has reasonable and probable grounds to believe that a

suspect’s ability to drive is impaired by alcohol. It is not difficult to find that a police officer, when a suspect, such as the accused, at approximately 3:00 a.m. races past her at a high rate of speed, smells of alcohol, admits to having consumed alcohol and matches the description of a person who has been reported to the police as being intoxicated by a concerned citizen, had reasonable and probable grounds to ask him for samples of his breath pursuant to Section 254(3) of the Criminal Code .

The Breath Tests [ 11 ] Upon arriving at police headquarters at 3:23 a.m., Constable Young was told that she was going to be the breath technician in this case. Constable Young testified that she had first been qualified as a breath technician on March 1, 2011 and that her last requalification had occurred on May 22, 2013. Almost immediately, and specifically at about 3:29 a.m., she proceeded to the breath room and started preparing the Intoxilyzer 8000 C 5151 for the task of taking and analysing samples of the accused’s breath.

Constable Young explained in her evidence how and what prerequisite testing she had completed to make the machine ready for this task. This included a number of both diagnostic and calibration tests designed to establish that the instrument was functioning properly. Importantly, in her evidence, Constable Young noted that she, as a part of the instrument’s preparation, analysed her own breath.

The evidence shows that the accused entered the breath room at about 3:41 a.m., Constable Young then taking the time to enter the requisite information into the Intoxilyzer and to start inputting information into the Alcohol Influence Report which she would have to prepare in the company of the accused. [ 12 ] At 3:48 a.m., Constable Young heard the accused burp, noting that he had been burping earlier in her cruiser while being brought to police headquarters. At 3:48 a.m., Constable Young again read the accused the requisite demand for breath samples, again providing to him his rights and caution.

The accused’s first breath sample was taken at 3:50 a.m., while his second sample was taken at 4:15 a.m. The breath tests produced results of 130 mg of alcohol in 100 mL of blood and 121 mg of alcohol in 100mL of blood respectfully. It should be noted that the samples were taken 25 minutes apart, thereby respecting the requirement for a 15 minute delay between the first and the second sample. During the interval, Constable Young testified she would have questioned the accused in order to complete her Alcohol Influence Report and make notes based on her observation of the accused.

I find that both the roadside breath test as well as the Intoxilyzer breath tests were taken as soon as practicable and within the prescribed time periods. [ 13 ] In the course of his cross-examination of Constable Young, defence counsel zeroed in on the fact that she had noted the accused burping two minutes before the first breath test, with a second episode of burping occurring at 4:18 a.m., three minutes after the second sample had been taken.

This burping had resulted in an alcohol odour in the breath room not dissimilar to that which Constable Young had noticed earlier in her cruiser after the accused had been arrested and placed in it. Constable Young was asked whether she was familiar with the Centre of Forensic Sciences 2010 Intoxilyzer 8000 C Training Aid Manual; she indicated that she was. Her attention was drawn to the risk of mouth alcohol invalidating breath test results. It was suggested to her that by burping, the accused had caused alcohol laden gas or vapours to flood his mouth and invalidate his first breath test.

It was pointed out to her that the Centre of Forensic Sciences’ recommendation was that a suspect’s breath not be tested until at least 15 minutes had elapsed between the introduction of alcohol into his or her mouth and the time of the testing. This issue did not arise with the second test, of course, given that the burping noted by the officer occurred only after the second test had been taken, there having been a 25 minute interval between the first and second test. This line of questioning by the accused was predicated on the assumption that his burping had introduced alcohol into his mouth from his stomach.

While the accused did not testify, the line of questioning pursued by his counsel suggested that he suffered from GERD or gastro esophageal reflux disorder.

There was absolutely no evidence during the trial to support this insinuation or possibility and, when the defence expert toxicologist, Ben Joseph, testified on this matter, and somewhat vaguely at that, it was made clear that the accused had no such evidence to offer the court, either directly or through his expert witness. [ 14 ] The evidence of Constable Young indicates that she was clearly aware of the mouth alcohol issue and the risk of “contamination” of breath samples by alcohol in the mouth of someone whose breath was being analysed.

She had been taught to ensure that the subject of a breath test had not consumed alcohol for 15 minutes prior to the first breath test or that he or she had not used a mouthwash or a breath freshener, had not experienced a GERD episode and had not vomited within the same time. She testified that she adopted the 2010 Centre of Forensic Sciences Training Aid Manual’s position that testing could be protected by respecting three safeguards.

These were: (1) respecting the 15 minute time lapse sequence in testing; (2) ensuring that the tests were at least 15 minutes apart and that the results were in a good agreement (meaning that there was not more than a 20 mg difference in the two tests results and; (3) verifying that the Intoxilyzer’s slope detector component produced a breath flow record showing that the accused’s breath had levelled off gradually after the initial climb indicating the presence of the alcoholic breath located deep within his or her lungs.

These safeguards, Constable Young stated, guaranteed the integrity of the breath-testing procedure. It is not necessary here to go into the science behind the slope detector. Suffice it to say that basically the slope detector, accepting that it is functioning properly, will detect the presence of alcohol or alcohol vapour in the mouth of the person whose breath is being analysed and will produce an error message invalidating the breath test sequence in question.

It was Constable Young’s opinion, the opinion of a qualified and experienced breath technician, that had the burping identified by her constituted a problem because of its introduction of alcohol or alcohol vapour into the accused’s mouth, the Intoxilyzer 8000 C would have produced an “Error” reading.

It was clear from Constable Young’s evidence that the Intoxilyzer used to analyse the accused’s breath functioned properly and produced no message or notice of a problem caused by the accused burping of alcohol or alcohol -laden breath into the Intoxilyzer on the occasion of the first test or later during the second breath test. Constable Young adopted the Centre of Forensic Sciences Training Aid Manual’s policy that mouth alcohol is expelled rapidly from the mouth and that because of the rapid absorption of alcohol by the body, stomach gases do not act as a significant reservoir for alcohol.

This is the accepted position on the matter by the scientific community in Canada . While Constable Young is not an expert in forensic science, her evidence with respect to the information and recommended procedure contained in the Training Aid Manual is important in that it indicates that as a breath technician at the time of the accused’s breath testing, she understood what the issues were relative to the taking and analysis of breath samples and had a good understanding of how the Intoxilyzer 8000 C operates and the risks to its proper operation .

The Expert Evidence [ 15 ] The expert evidence in this matter touched on a number of issues including the effect of the presence of mouth alcohol on the

accused’s breath test results and the operation, maintenance and inspection of the Intoxilyzer 8000 C 5151 (with its attached Guth Laboratories 2100 Simulator DR6136) and the roadside screening device, the Alcotest 7400 G, the instruments used by the police in this case. [ 16 ] The issue with respect to the role of mouth alcohol involved a consideration of the impact of mouth alcohol on the readings generated by the instruments used in this case on August 20, 2013, as well as the manner in which mouth alcohol may have been delivered to the accused’s mouth. [ 17 ] The issue with respect to the operation, maintenance and inspection of the instruments used by the police involved not only an examination of the breath technician’s qualifications and performance but also the inspection requirements and history of inspection and maintenance of these instruments as well as issues of their accuracy and reliability.

Overshadowing these particular concerns was the accused’s theory of Drift. [ 18 ] I will turn first to the mouth alcohol issue and then I will deal with the operational, maintenance and accuracy issues associated with both the Intoxilyzer 8000 C and the Alcotest 7400 GLC . Mouth Alcohol Effect Evidence of Constable Young [ 19 ] As indicated earlier, Constable Young, the arresting police officer and breath technician in this matter, noted what she described as “burping” by the accused from the time she arrested him and put him in her cruiser.

According to Constable Young, there was still some evidence of this burping in the breath room at the time the breath samples were taken. Her description of what was happening here was that she did not hear this burping but was made cognizant of it both in her cruiser and in the breath test room. We know that in her Alcohol Influence Report, she noted burping by the accused two minutes prior to his first breath test at 3:50 a.m. and again at 4:18 a.m., 3 minutes after his second test.

It is important to note that Constable Young, as indicated in her evidence, had been trained to react appropriately to the occurrence at the time of testing of a number of symptoms or events which could vitiate breath tests results. Chief among these was the presence of alcohol or alcohol charged vapour or gas in the subject’s mouth caused by the consumption by him or her of alcohol, mouthwash regurgitation or vomiting proximate to testing.

She was aware of the recommendations both from her training and the Training Aid Manual provided to her for training purposes that there should be a 15 minute interval between the last consumption of alcohol and the first breath test and also that there be at least a 15 minute interval between the first breath test and the second breath test. The evidence indicated that she had complied with these recommendations. [ 20 ] With respect to the first breath test, Constable Young was aware that from the time she observed the accused he was not consuming alcohol or any products likely to produce a mouth alcohol effect.

Nothing in her training, she testified, dictated that she could not perform a breath test if burping occurred two minutes before that breath test. There were, Constable Young agreed, a number of safeguards against the effect of mouth alcohol on the results of the breath tests she was obliged to perform.

These included: (1) a time delay of 15 minutes between the time alcohol was last consumed by the accused and the taking of the first breath sample; (2) obtaining two breath tests from the Intoxilyzer not sooner than 15 minutes of each other in “good agreement” with each other; (3) obtaining a good slope reading from the Intoxilyzer’s slope detector component. The evidence indicates that these safeguards were considered by Constable Young in carrying out her roadside screening and her breath tests of the accused.

Evidence of James Rajotte [ 21 ] In evidence, the Crown called James Rajotte, a scientist of 13 years with the Centre of Forensic Sciences. Like Ben Joseph, also a scientist of many years’ experience with the Centre of Forensic Sciences and the defence’s expert witness in this matter, he was recognized as an expert in toxicology with respect to the absorption, distribution and elimination of alcohol and drugs in the human body and the effects of alcohol on the operation of Intoxilyzer and related roadside screening instruments.

A review of the curriculum vitae of these scientists filed in evidence indicates their high level of expertise in the present matter. [ 22 ] In his report dated May 2, 2014 (see Exhibit 5) James Rajotte was asked to comment on whether the burping of alcohol vapours could affect the accuracy and reliability of breath samples provided directly into an Intoxilyzer 8000 C instrument. He defined burping as the expelling of gases from the stomach through the mouth and nose.

While acknowledging that burping produced from the stomach where unabsorbed alcohol was present could lead to alcohol charged vapour being present in a breath sample, he stated that it was his opinion that for such vapour to cause a false elevation of blood alcohol content readings from an approved instrument “a specific and time-controlled series of events would have to occur”. [ 23 ] Having examined the records of the Intoxilyzer 8000C 5151 used on the occasion of the taking of the accused’s breath tests on August 20, 2013, James Rajotte gave it as his opinion that “the burping of alcohol vapours from the stomach would not have affected the accuracy or reliability of the Intoxilyzer 8000 C breath test results of 133 and 121 mg of alcohol in 100 mL of blood obtained at 3:50 a.m. and 4:15 a.m. respectively.

He based his opinion on six factors including: (1) that an interruption in the breath sequence would have caused alcohol vapour blown into the instrument to be initially pushed through the instrument which was designed to measure the subject’s deeper lung breath, thereby causing it to ignore the breath sample obtained at the beginning of the sequence. In the event that this had not happened, he testified, the instrument would have either produced an error or exception reading or it would have caused the testing sequence to stop.

James Rajotte also gave his reason for believing that burping coming from the accused at the time of testing would not have affected his breath tests results because research on gastrointestinal reflux “had failed to identify a significant risk for false elevation of a breath derived BAC (blood alcohol content) even when materials, including recently consumed alcohol, and not just vapours are regurgitated.” He further opined that the two tests obtained with respect to the accused’s breath were “within good agreement in this case” and therefore based on the absorption and distribution of alcohol, this would be unlikely to occur if mouth alcohol had been present.

Additionally, an exception message, “Invalid Sample”, he further stated, was not present on the test record but would have been expected if mouth alcohol had been present in an analysed breath sample. Lastly, James Rajotte supported his conclusion by noting that as the time between the last consumption of alcohol and the first breath sample increases, “the likelihood of both mouth alcohol being present and unabsorbed alcohol remaining in appreciable amounts in the stomach is reduced.” Based on the

information provided to him, he concluded, “the potential for both mouth alcohol and significant unabsorbed alcohol being present at the time of breath sample provision is low.

As such, any alcohol vapours in the breath are most likely related to the BAC.” [ 24 ] In conclusion, James Rajotte confirmed that his review of the accused’s Intoxilyzer 8000 C test records indicated that the calibration of the instrument had been checked and that it appeared to have been in proper working order at the time the tests were carried out. “It is my experience” he noted, “that when a qualified technician operates the instrument properly, it provides reliable readings of the BAC”.

Noting the analytical and biological variability associated with breath testing, James Rajotte stated that breath testing from the Intoxilyzer 8000 C typically underestimates an individual’s BAC and further that an overestimation of an individual’s BAC was rare and “highly unlikely to exceed 10 per cent.” [ 25 ] In his evidence, Ben Joseph, the defence’s expert toxicologist, would criticize the Intoxilyzer 8000 C as an instrument having no measure of certainty, a concept meaning that since no instrument of measure is infallible, it must be known in assessing test results obtained from it what its margin of error is.

While the Intoxilyzer 8000 C does indeed not have such a measure of certainty, unlike many other scientific instruments approved by the Centre of Forensic Sciences, it would certainly appear that this principle has been taken into consideration by the Centre of Forensic Sciences and the Alcohol Test Committee in their approval of the Intoxilyzer 8000 C for breath testing analysis. The Ambient Air Issue [ 26 ] The issue of mouth alcohol effect took a different turn when it was suggested that the accused had been “belching” prior to and at the time of his breath testing.

When the accused pointed to the 2013 Intoxilyzer 8000 C Training Manual indicating that “belching” could be considered as a theoretical source of mouth alcohol, the Crown sought a further report from James Rajotte on this issue. In his Letter of Opinion dated November 5, 2014 (see Exhibit 6) James Rajotte gave it is as his opinion that “belching in this specific case would not falsely elevate the blood alcohol concentration (BAC)” for a number of reasons. He pointed to the time of the last consumption of alcohol (2:46 a.m.) by the accused as allowing for “essentially full absorption of alcohol” to have occurred.

He opined that the instrument’s records gave no indication that mouth alcohol had been detected at the time of the testing and to the fact that Intoxilyzer 8000 C instruments are equipped with a “slope detector” component to assist in the detection of mouth alcohol.

He pointed out that there had been a “deprivation” between the accused’s arrest and his first breath test of the required 15 minutes and also an even larger time lapse of 25 minutes between the two tests, stating that this amount of time had been shown to eliminate the potential for mouth alcohol and allow significant absorption of alcohol into the blood. Lastly, the fact that the accused’s two readings were in good agreement and that this would not have been expected if alcohol vapours were being expelled from the accused’s stomach and present in the breath samples.

Lastly, he pointed to testing (in a scientific journal “Newsletter”) where the effect of belching as a source of mouth alcohol was examined.

He adopted this publication’s view asserting that even vigorous belching following alcohol consumption could not cause a falsely elevated blood alcohol concentration resulting from alcohol. [ 27 ] Addressing the issue of ambient alcohol present in the breath room during testing, James Rajotte pointed out that the Intoxilyzer 8000 C “conducts air blanks to determine the level of ambient alcohol that may be present” with the standard pegged at 10 mg. of alcohol in 100 mL of blood.

The ambient alcohol present in the breath room, he opined, had not been sufficient to trigger an “Ambient Fail” message from the Intoxilyzer, with the result that the “below 10 mg reading” would have lowered the instrument’s base line and the consequent breath test results. [ 28 ] What was notable about James Rajotte’s evidence was its specificity. In giving his expert opinion, he was careful to tie his opinion to the facts of the case at hand and the evidence with respect to it .

His opinions on the matters at issue were not successfully challenged by the accused, the effect of his testimony being to confirm the validity of his opinions. Suggesting that a point is factual or that it establishes the veracity of something when it speaks of “possibility” is not really helpful. This James Rajotte was careful to avoid when providing his testimony to the court. Considerable weight must therefore be given to the evidence of James Rajotte in this matter, particularly where it is countered by contrary opinion based on the “possibility” of something either occurring or existing.

Evidence of Ben Joseph [ 29 ] In support of its contention that the breath test readings of the accused were neither accurate nor reliable, the defence called its expert toxicologist, Ben Joseph, asking him to give an opinion on this point as well as the impact on the test results of “ambient ethyl alcohol arising from belching” (see report filed as Exhibit 7B ).

Reviewing the evidence about the presence of an odour of alcohol in the breath room at the time the accused was being tested, Ben Joseph remarked in his report, without preliminary comment, that “Gasses expelled due to the phenomenon of belching from the stomach contain a higher percentage of alcohol (due to ethyl alcohol present in its unabsorbed form) than alcohol present in an individual’s lungs (ethyl alcohol present in its absorbed form).” He went on from there to indicate that “while the presence of such gases might not affect the physiological process of obtaining a breath sample from the lungs, there exists a “potential” (my note ) for expelled gases to cause an ambient ethyl alcohol concentration in the air, thereby affecting the accuracy and reliability of the breath tests due to interference of ethyl alcohol vapours present in the room air.” Agreeing with the evidence of his colleague, James Rajotte, on the effect of ambient ethyl alcohol concentration in the air, Ben Joseph went on to state the following: If the instrument determines ambient conditions by an ethyl alcohol concentration of less than 10 mg in 100 mL (which is the new baseline without producing an ambient fail message), there exists a “possibility” (my note) that future ambient conditions, within the same breath test sequence, to increase to within 10 mg/100 mL of the previous baseline without producing ambient fail messages.

Thus, initial and future breath test readings may be observed to deviate from each other due to the instruments (sic) capability to remove the initial ambient baseline and subsequent ambient baseline ethyl alcohol concentrations from a breath reading. This would lead to inaccurate and unreliable breath alcohol readings. [ 30 ] Notable in Ben Joseph’s opinion here is the use of the terms “exists a potential” and “exists a possibility” with respect to the matters at issue, in particular with respect to “unreliable and inaccurate” readings.

There is no credible evidence before the court to suggest that ambient ethyl alcohol was concentrated in the air in the breath room at the time of the accused’s breath tests to a degree sufficient to affect the accuracy and reliability of those breath tests due to the interference of ethyl alcohol vapours present in the room

air. While the evidence indicates that the accused did burp on two occasions, one before the first test and the second time after the second breath test, this does not establish that the vapour or gases connected with these burps was the source of the odour of alcohol in the breath room. I take note of the common experience that one can experience the smell of alcohol emanating from a person who has been drinking without there being any indication that such a person is burping or belching and that the likely source of such a smell is the air being expelled by that person’s lungs.

It must be recalled that Constable Young had experienced an odour of alcohol emanating from the accused while driving him to headquarters to undergo his breath testing. [ 31 ] Again, it is not clear what Ben Joseph means when he opines that “there exists a possibility that future ambient conditions within the same breath test sequence, to increase to within 10mg/100 mL of the previous baseline without producing ambient fail messages.” How many other breath tests is he speaking about within the same test sequence?

In the present instance, we are not talking about a period of continuing use of the Intoxilyzer 8000 C. We are talking in this case about two breath tests within 25 minutes of each other. [ 32 ] Returning to the evidence of James Rajotte, we get a better understanding of how the Intoxilyzer 8000 C deals with the issue of ambient alcohol vapour present in the breath room. We can see that the end effect of the continuing presence of ambient alcohol at a test site is to produce a lower and not a higher reading of blood alcohol content levels in an accused’s body.

Again, while there might exist a potential for expelled gases to cause an ambient ethyl alcohol concentration in the air, this has not been established in the present case. Constable Young noted the three safeguards for ensuring that the alcohol test results were not affected by the presence of ambient alcohol in the breath room. The evidence of James Rajotte with respect to burping or belching, which I do accept, establishes that the ambient alcohol vapours released into the accused’s mouth could not have led to false BAC readings in the present case.

This being so, how can it be rationally argued that once those vapours had been released from the accused’s mouth into the breath room air, they would be sufficiently strong to cause an adjustment mechanism in the Intoxilyzer 8000 C to operate inadequately and produce false readings? I find that Ben Joseph’s evidence on this matter has not established that ambient alcohol gas or vapour originating from the accused stomach or mouth in the breath room during the course of his breath testing lead to inaccurate and unreliable breath test readings.

GERD, Regurgitation and Eructation [ 33 ] In a report to defence counsel dated March 22, 2015, Ben Joseph addressed the issues of burping, regurgitation and GERD (Gastro Esophageal Reflux Disorder). Therein Ben Joseph defined burping as scientifically termed “belching or eructation” He also defined “GERD” and “regurgitation”. He cited and adopted the validity of a study by Specter H.

N. to the effect that… “Transitory contact of ethanol with the mucus membranes of the mouth or nasal passages, or both, is sufficient to drastically alter measurements of concentrations of ethanol in so-called “alveolar”” gas for more than 20 minutes after such contact” .He went on to quote that study to the effect that… “When true concentrations of blood alcohol were at or close to zero, readings of greater than 0.40 grams per 100 millilitres were obtained on the Breathalyzer”.

He then opined that the Alcotest 7410 GLC (the type of screening device used by Constable Young in the accused’s case) does not have a mechanism to detect mouth alcohol and that the mouth alcohol effect is time- dependent and will dissipate within 15 minutes after consumption of alcohol , pointing out that when using a roadside screening device… “Actual residues of alcohol in the mouth may give false measurements” left by a variety of substances including burping and vomiting.

Further in his report, he commented on the Intoxilyzer 8000 C Training Aid’s statement that if unabsorbed alcohol remained in the stomach, vomiting, regurgitation, and GERD can introduce alcohol from the stomach into the mouth producing a falsely elevated BAC, a time delay of 15 minutes being required between such an event and use of the Intoxilyzer.

Ben Joseph opined how he believed that interval should be 15 to 20 minutes in order to ensure that mouth alcohol was not present, concluding his report (see page 2) that burping by the accused had been noted at 3:48 a.m., with the first breath test being conducted two minutes later. This, he stated, were the grounds for the opinion given at the conclusion of his report that the accused’s breath alcohol results were inaccurate due to “improper operation and a possible mouth alcohol effect”.

Undoubtedly, his comment about improper operation had to do with administering the first test two minutes after burping was noted from the accused. Likewise, his conclusion that the test results were inaccurate was based on his belief that the alcohol present in the accused’s mouth during the testing had resulted in inaccurate test results. [ 34 ] I cannot place much weight on the opinions contained in Ben Joseph’s March 22, 2015 report. There is, I find, little to support its conclusions. Providing

definitions of “GERD”, “regurgitation”, “burping” and “belching” does not much assist in understanding the issues before the court. Ben Joseph’s opinions that “actual residues of alcohol in the mouth may give false measurements” and that “rinsing of the mouth with water or non-alcoholic drinks is no substitute for an interval” adds very little persuasion to his opinion on this matter.

Surely, a reasonably intelligent person with a basic understanding of how the Intoxilyzer 8000 C works would or might expect a “Fail” analysis of an accused’s blood alcohol content if the accused had alcohol or alcohol vapours in his mouth at the time he provided breath samples In his report, Ben Joseph fails to support his mouth alcohol opinion with any scientific information or backing . Quoting from an unknown author (H. N. Specter) does not much assist him in establishing a case for his opinion, which I am compelled to reject.

Unreliability and Inaccuracy of the Breath Test Results [ 35 ] The accused’s final contentions in respect of the unreliability and inaccuracy of his breath test results is the last point I will touch on in this matter. While an attack was made by the accused on the credibility of the Greater Sudbury Police Service as operators and maintainers of the breath testing equipment used by them to establish his blood alcohol content, I found little evidence adduced on his behalf to establish that they had been poorly trained or had not followed approved breath analysis procedure.

Without examining the evidence in this respect in detail, it is reasonably clear from the evidence adduced that the police officers who had any connection with the present case either directly or indirectly were cognizant of the need to maintain these instruments ,the Intoxilyzer 8000 C and its Simulator, as well as the Alcotest 7400 GLC, the roadside screening device.

While it is clear that the police services involved in this and neighbouring areas do not always follow the servicing recommendations of the instruments’ manufacturers and the Alcohol Test Committee of the Centre of Forensic Sciences (contained in the current 2013 Training Aid Manual), it is clear that they understand the need to keep these instruments functioning properly.

What evidence there was about this indicated that when there was a problem with an instrument which could not be remedied, the operators were prepared and did send it out for servicing or repair and that they did not use it until they were satisfied it was in proper operating condition. [ 36 ] We may reach the same conclusion about the training of the breath technician, in this case Constable Young, where there was evidence not only of her qualifications but also of her efforts to keep those qualifications relevant. Filed in evidence are certificates of

the training undertaken by the officers responsible for maintaining the proper operation of the instruments used in this case . While there was an issue with respect to the calibration of the roadside screening device used in the present case by Constable Young, it is wrong to assume that this particular device had not been maintained in proper working order when one considers the police service (GSPS) policy to calibrate such instruments on a regular basis.

This surely must be deduced from the fact that Constable Young actually made a point of checking the calibration of the roadside screening device she used or at least looked for a certificate indicating that the screening instrument had been recently calibrated.

The evidence was clear too that while not self-correcting, Intoxilyzer 8000 C instruments are able on many levels to detect a malfunction and compel their operators to either rectify it before proceeding with breath testing or abandon such testing. [ 37 ] The evidence established that a breath- testing sequence would be interrupted if any problem occurred with respect to the functioning of an instrument.

Defence expert Ben Joseph pointed out in his evidence that the COBRA data obtained from Intoxilyzer 8000C 5151’s black box (this being the instrument used to establish the accused’s blood alcohol content) revealed 64 calibration failures (including 14 “zero” calibration error results in the period between 2012 and 2015). This evidence does not mean, however, that the instrument used in the accused’s case produced unreliable or inaccurate readings. The evidence established rather that the Intoxilyzer 8000 C on the various occasions it was used recognized a difficulty or a malfunction requiring rectification.

That an instrument sends out a problem signal or signals does not mean that it does not work or is not dependable, accurate or reliable. Ben Joseph admitted himself that COBRA data only indicated that a fault had occurred in the operation of an instrument and not what the problem was with the instrument.

Without going into the many examples discussed during the trial, Ben Joseph’s evidence indicated that many of the “Fail” or “Error” messages he found and examined in the COBRA data with respect to the Intoxilyzer and its accompanying Simulator instrument occurred after the time when the accused’s breath samples were taken. Use of Historical Records and the Theory of Drift [ 38 ] The Alcohol Test Committee is a body of scientists charged with certifying the reliability and accuracy of scientific instruments, including the Intoxilyzer C.

The ATC works in close collaboration with the Centre of Forensic Sciences, with which it is associated. Both the ATC and the Centre of Forensic Sciences maintain the scientifically recognized position in Canada that historical data related to the Intoxilyzer 8000 C, such as that in the form of COBRA data, cannot be used to determine the accuracy and reliability of an Intoxilyzer 8000 C on any given date. This includes then the Intoxilyzer C used by Constable Young to analyse the accused’s blood alcohol content on August 20, 2013.

Ben Joseph disagrees with the official position of his former employer and the Alcohol Test Committee. [ 39 ] The evidence of Ben Joseph was that the Intoxilyzer 8000 C and its accompanying Simulator instrument are subject to deterioration over time because of wear and tear and the failure of those operating them to properly maintain and repair them. This is the basis for his theory of Drift and the reason why he believes the test results from these machines are not accurate or reliable.

Ben Joseph maintains that while errors arising during ongoing testing can be immediately corrected, over a period of use, say after four or five years of use, breath analysis instruments begin to break down and produce increasing patterns of failure . This he argues strongly suggest or indicates that the instrument cannot be relied on in any one instance to provide accurate and reliable results.

If I understand Ben Joseph’s theory of Drift correctly, it is that with increasing use, the baseline of the instrument essential to ongoing test results will drift or be altered, with the result that while the readings appear to be accurate, they will be inaccurate in their ability to provide true results of the tests which are being carried out. [ 40 ] Ben Joseph testified that he was able to obtain data from the Intoxilyzer C’s black box (the one at issue in this case) by using a software program designed to retrieve this data.

He stated that he had been able to obtain data for the period between 2012 and the middle of 2015. He recalled obtaining packets of such documents, saying that they were not always organized. In cross-examination, however, he admitted that he had not been able to obtain “all” (my note ) of the data relating to the Intoxilyzer 8000 C used in the accused’s breath tests. This was because, he explained, the software program he used was unable to access data for certain periods due to its inability to communicate with the Intoxilyzer’s black box.

This, I find, is problematic from the viewpoint of a scientific approach. One would think that without the complete data relating to the instrument whose operation he was verifying, he would face a hurdle in arriving at any valid conclusions about that instrument. In his evidence, Ben Joseph explained that this was not his fault in that he was forced to deal with the data he was able to obtain.

He acknowledged that a lot of the problems encountered by the accused’s Intoxilyzer occurred “after” the date of the accused’s breath tests and specifically towards the end of 2014 and the beginning of 2015 when, the evidence indicates, the Intoxilyzer was about four years old. I note that when the accused breath tests were taken, the Intoxilyzer was only about two and a half years old, so it was relatively new and less likely, according to Ben Joseph’s theory, to have been malfunctioning.

A persuasive argument cannot be made when one is seeking to advance a theory based on partial evidence, in particular with respect to a specific instrument. Surely, accuracy and reliability require complete data not only from the instrument but from a good number of such instruments. This is one area where I find Ben Joseph’s expertise has gone very much awry. [ 41 ] In cross-examination 1 Ben Joseph was questioned about prior testimony he had given in a previous case, Regina v. Welna (Jan. 24, 2011, Bignall J, unreported).

In his testimony in that case, he addressed the issue of the use of historical data as a means of determining the accuracy and reliability of an Intoxilyzer 5000 C, a predecessor to the present Intoxilyzer 8000 C, but an instrument operating under similar principles. In his testimony in that case he had maintained that if an instrument had recorded a failure before or after a test sequence, this would call into question simply whether the instrument needed to be serviced or one of its parts replaced, maintaining that this would not speak about the particular breath tests conducted at the time.

When asked “why not”, his reply was that “every breath test sequence has a number of checks and balances and diagnostic checks are being conducted at every part of the sequence”. He noted that during a test sequence, the Intoxilyzer is constantly carrying on checks of its internal systems. He was asked by the Crown: So, if there were failure at other times… Suggesting that some servicing needing (sic) to be done, does that servicing have any impact on a breath test which appears to be concluded successfully according to the Intoxilyzer 5000 C test record?

You go on to comment on how preventative maintenance is recommended, but the court, the judge asks you: “Wouldn’t it be important to see the service record to see what’s happening whether there has been a need for service, whether they’re having problems? [His answer was], “No, it would not have any bearing to the breath test at that particular time”. Why?

Because again, every breath testing sequence has several checks of the instrument at that particular time and having a service or not does not speak about the accuracy or reliability of a particular breath test at that time.” [Ben Joseph was then asked]: I know you’ve had it read to you probably going several pages further, but the point being that at that time you testified as a scientist under oath that you don’t let anything that you learned about the instrument on another occasion (sic) doesn’t tell you anything important because everything you need to know about that occasion is contained in the data from that date, right? [His answer was] “Yes.” [ 42 ] Expressing now the rationale for his theory, en Joseph went on to state 1 Yes, and now I’m telling you that you don’t have to see failures show in COBRA or in a subject’s breath test record.

You can have inherent deficiencies within the breath testing process that may not show. When asked to explain how he could now be adopting a totally contrary view, Ben Joseph’s best explanation was that while employed by the Centre of Forensic Sciences, he had not been exposed to historical data.

Having since become aware of it and considered it, he said, he had changed his mind. [ 43 ] When further asked in cross-examination 2 Ben Joseph said: In your examination of COBRA Data for the 5151 Intoxilyzer(the instrument used in the accused’s case ), did you see a single instance in which a breath test sequence was completed in the face of a failure that had not been corrected before the breath test sequence began? [He answered]: “I did not. I did not see anything of that nature. I did not have any documentation until that letter was provided to me two weeks ago about the failures four years before.

So, I haven’t received anything.” The Scientific Method [ 44 ] In carefully reviewing Ben Joseph’s evidence, there are a number of acknowledgements on his part to the paucity of evidence available to him with respect to the Intoxilyzer 8000 C5151. When confronted with his prior scientific opinion, Ben Joseph was unable to explain how he was able reject the bulk of accepted scientific evidence about the reliability and accuracy of breath tests carried out with the Intoxilyzer 8000 C. As the evidence clearly disclosed, he admitted that he had not published one academic

article or book on his theory of Drift. He claimed to have learned about

interpretation of COBRA data supporting his theory from a course given by a Toronto lawyer. He admitted that he had not discussed his theory of Drift with other scientists and that he had never brought his idea to a scientific conference or meeting for the purpose of doing so. Most importantly, his acknowledged that his theory had not been peer reviewed. Even from a layman’s point of view, it is clear that the evidence he has advanced in support of his theory is based on partial evidence.

In giving evidence, he admitted that there were things he would need to know to better establish his theory, those things being a record of all use of a particular instrument, along with the time that instrument had been in use and information about whether that instrument was put out of use during that time for servicing or for some other purpose. [ 45 ] While there could possibly be a basis for Ben Joseph’s theory of Drift, I think that it could only be established with some credibility if the study were undertaken by the Centre of Forensic Sciences, the Alcohol Test Committee or some other credible, scientific body having access to COBRA data as well as the operational and maintenance data of a number of instruments in use over a defined period .

Anything less than such an approach could hardly be called scientific. While, therefore, Ben Joseph has much toxicological expertise, I am forced to conclude that in giving evidence in this case, he left the field of science to become a partisan litigator. He ignored established scientific knowledge in an attempt to prove his unproven hypothesis. In support of his theory of Drift, he abandoned the scientific method required of all true scientists. His theory of Drift remains hypothetical at best and dubious at worst.

I therefore reject his expert evidence in this case, in particular where it contradicts the expert evidence of the Crown’s toxicologist, James Rajotte. Conclusion [ 46 ] While the accused mounted a very strong defence to the Crown’s case, I find that he has been unsuccessful in his attempt to do so. The Crown has proven its case against him beyond a reasonable doubt. The accused’s Charter rights have not been violated in the process. I therefore convict the accused of having committed the offense contrary to subsection 253(1) (

b) of the Criminal Code with which he was charged. Released: February 2, 2017 ____________________________ Justice A.L. Guay, Ontario Court of Justice