Her Majesty the Queen - v. -, 2013 SKPC 122

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 122 Date: July 15, 2013 Information: 24428307 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Fallon R. Hudye Appearing: A. Wyatt For the Crown M. Brayford For the Accused JUDGMENT P. KOSKIE, J [1] This is a Charter application concerning disclosure of the Intoxilyzer used in the test of the Accused. The request fordisclosure is detailed in a letter of May 10, 2013 from Defence counsel to the Crown based on the recent decision of my learned brotherJudge Labach in R. v.

Pankiw, 2013 SKPC 47 , 2013 SKPC 047. [2] The Crown argues that the aforesaid decision is limited to the facts of that case and should not have a general application andrefuses to provide more disclosure on the basis it is not relevant. There are several specific facts detailed in the Pankiw decision that arenot before me namely, there was some suggestion of drift with respect to the ASD used in that case. I have no such evidence before mein this case, in fact the ASD was calibrated on the very date of the offence.

[ 3 ] At the outset I inquired with counsel if there were any outstanding issues with respect to the disclosure received on the ASD in the case before me and I have agreement by both counsel there are no outstanding issues with respect to the Approved Screening Device. [ 4 ] I can say it is my opinion the disclosure requirements for the ASD should be determined on a different basis due to the fact there is no statutory requirement to show the machine malfunctioned or operational error caused the reading. Also, it is just part of an investigative tool and is not presumed conclusive.

However for this decision my observations are purely obiter. [ 5 ] In any event, the only other factual difference in Pankiw is he was required to blow a number of times (five) prior to getting two proper samples as deemed by the breath technician. Here the Accused supplied two proper samples without any difficulty. I do not find this factual difference to be significant in dealing with the disclosure issue.

Particularly when the most common problem with this model of Intoxilyzer is an insufficient air sample being provided, as in the Pankiw case and as testified to by Sergeant Skinner, a very experienced breath technician in this case. [ 6 ] The Accused was observed driving by Cst. Schmidt taking a wide turn in the City of Yorkton, Sask. and thereafter some jerky braking and acceleration which caused the police officer to stop the car. The police officer detected an odour of liquor coming from the Accused. In conversation the Accused admitted to having one glass of wine.

This combined with the odour of alcohol and driving resulted in an ASD demand and a Fail result. The Accused was taken to the police station and ultimately two suitable samples were taken from the Accused. [ 7 ] There was a great deal of evidence led by the Crown about the Intoxilyzer used in this case. Constable Schmidt testified that he performed an Alcohol Standard Wet Bath Change Form on April 7, 2011, the date of the offence and filed as P-5 in this voir dire .

It was an 18 step process which was completed and found to be in good working order within the proper parameters and as part of that process Constable Schmidt performed a supervisor test sheet, namely step 16 and filed as P-6, which is five sample tests all showing results of 101, 101, 101, 100 and 100 mgs which meant the instrument was accurately measuring blood alcohol concentration. [ 8 ] The alcohol solution is changed every 14 days and Cst. Schmidt did the next change over on April 21, 2011, when he performed another supervisor test filed as P-7 with five sample tests all with readings of 100 mgs.

The result being Cst. Schmidt had no concerns about the instrument operation both before and after the two samples of breath were taken from the Accused. Both of these two documents have already been disclosed to the Defence. [ 9 ] He also testified if there was a problem with the Intoxilyzer that could not be rectified by the operator like a loose connection or leaky seal, then the Intoxilyzer would be taken out of service and sent away for servicing. [ 10 ] Under cross-examination Constable Schmidt admitted he was familiar with

Chapter G of the Intox EC/IR II Resource Reading Manual which deals with quality assurance and further, that the machine keeps usage and alcohol change records within the instrument itself and could be printed out and provided. [ 11 ] Sergeant Skinner was the breath technician in this case and was part of the committee that reviewed and recommended this new breathalyzer machine, the EC/IR II, and the Yorkton Detachment had the first one in Canada. [ 12 ] He testified that the machine is designed to abort the test sequence if there is a problem with the instrument or a malfunction of any kind. [ 13 ] Further, if an operator encounters any issues he tries to identify the cause and rectify ie. loose connection or seal and if the operator is unable to identify any reason for the problem, the machine is taken out of service and packed up to be sent away for servicing.

[ 14 ] In this specific case, no maintenance or malfunction issues have arisen with this Intoxilyzer since it had been put into service aside from the midnight issue, workaround issue for which a general service bulletin existed and has been disclosed to the Defence already. [ 15 ] Sgt. Skinner stated that this type of machine will not allow you to start a test if you have a solution problem and the solution is changed every 15 days or 50 tests, whichever comes first.

The Intoxilyzer keeps track of this internally and will not proceed to a test sequence if not followed. [ 16 ] He then detailed the process in this breath test as follows: The Accused’s first breath test was the first breath test after calibration check of this Intoxilyzer had been completed by Constable Schmidt. Machine upon start up runs a diagnostic test to check its circuitry and temperature, at 12:30 it passed the diagnostic test. Then it did an air blank check at 12:31 which resulted in a zero to indicate there was no alcohol in chamber.

Then at 12:32 Standard Alcohol Check resulted in 101 mgs per 100 millilitres (anything between 90-110 mgs is acceptable). At 12:33 another air blank check with a result of 0, then at 12:34 proper breath sample was provided in Sgt. Skinner`s opinion with a reading of 120 mgs per 100 millilitres. At any of these stages if the machine was not working properly or a result was outside of the appropriate range the breath test would be aborted. Then air blank test at 12:35 with a 0 result and a 15 minute countdown clock in the instrument runs.

At 12:51 second test commences with same process except standard alcohol check resulted in 100 mgs as opposed to 101 mgs per millilitres, again within acceptable limits, and at 12:55 p.m. the same reading of 120 mgs per 100 mls was obtained from the Accused. [ 17 ] In conclusion, Sgt. Skinner stated he received two suitable samples of 120 mgs/100 mls.

As well the machine passed 2 diagnostic tests, 2 alcohol standard solution tests within the 10% requirement, and 2 suitable samples of breath within the 20 milligrams tolerance. [ 18 ] In addition he made the observation that the Accused appeared upset but did not show gross signs of intoxication. [ 19 ] The Defence did file an expert report indicating that they were at least considering a Carter type of defence in the case at bar. [ 20 ] Sgt. Skinner testified that the Intoxilyzer is not self correcting, if it is not working properly it will not start the test sequence at all.

If a breath technician encounters problems and a technician adjustment does not rectify it, then it must be sent away for servicing. [ 21 ] Sgt.

Skinner testified that the information requested for disclosure is available but in his opinion the calibration log of April 7 and April 27 deal with the relevant period of time and show the machine was operating properly at the time of testing. [ 22 ] Lastly, in this case there would be an initial set-up file but no maintenance log because no maintenance had occurred because it is done yearly and the machine was only 5 months old at the time the tests were taken in this case.

There would now be a maintenance log sometime in December of 2011, as it would have gone through to its annual maintenance check up approximately a year after being put into service. [ 23 ] Further, as indicted earlier the instrument won’t run if the solution has not been changed within 15 days or 50 tests. It must be within 5% of target values to pass the solution bath test and it passed both tests on the April 7 and April 21 st dates.

[ 24 ] Simulator annual certificate shows it must be at proper temperature and that the motor is agitating properly and the letter indicating an approved solution was posted where the breathalyzer is located at the time the breath tests were taken. [ 25 ] There was a request for all bulletins concerning this Intoxilyzer machine and one has been provided to the Defence but the other has not because it explains the cyclical redundancy checks. [ 26 ] In cross-examination Sergeant Skinner admitted the running total of tests is not the number of live people tested but includes supervisors tests and this would show up on the instrument usage log which the Intoxilyzer keeps stored internally and can be printed off. [ 27 ] Further, although there was no maintenance log on April 7, 2011, there would be a folder that would include initial documents when set-up by Dav Tech, when the instrument was put into service, the software used, and who did the set-up and initial calibration.

All initial set-up documents and the annual maintenance documents would be thrown into a maintenance file or log. Further any software updates or

part changes would be included in this file. [ 28 ] In addition it is usual practice to use an alcohol solution that has been actually analysed and certified as opposed to one in a lot where a sample of the solutions has been analysed and certified when doing the maintenance or initial set-up of the machine. [ 29 ] If hypothetically the standard alcohol test historically showed a noticeable swing from 91% to 110% it may create a red flag but the only way to know would be to get a historical look at the records for the machine. Issue [ 30 ] Has there been a breach of the Accused’s

section 7 Charter right to make full answer and defence to the charges by the Crown’s failure to disclose the following: The calibration logs, maintenance logs, instrument usage logs, alcohol standard change logs, the simulator annual certificates and Analyst’s certificate or reporting letter purporting to state the suitability of the alcohol solution for the Intoxilyzer EC/IR II, Serial No. 011349 for the period the machine was first put in service until and including its yearly annual maintenance subsequent to April 8, 2011.

In addition any additional bulletins received by the Yorkton RCMP regarding the Intoxilyzer EC/IR II. Argument [ 31 ] The Crown’s factual situation in this case is as strong as it could possibly be in that there was a standard alcohol bath test including supervisors test and calibration done on this very Intoxilyzer immediately prior to the Accused blowing into this instrument. [ 32 ] Both witnesses for the Crown are experienced breath technicians and indicated that the Intoxilyzer was functioning correctly on the date in question.

Further, if they ever had an issue with an Intoxilyzer that was not easily rectified they would send it away. [ 33 ] In other words the Intoxilyzer machine by its very design and combined with the recent calibration and safety features eliminate the need for further disclosure other than what has been provided namely, the calibration tests of April 7, 2013 and April 21, 2013 along with the Certificate of Analyses and one bulletin. [ 34 ] In essence the Crown evidence is that the Intoxilyzer only engages in a test sequence if it is in proper working order and

reliable tests can be obtained. This machine is approved by Parliament and evidence has been led it was operating properly on the date inquestion and two suitable samples were obtained. Any calibration issues outside of this time period are irrelevant. The maintenance logwas not in existence at the time of these tests so they are not disclosable as they did not exist. [35] In applying the same evidentiary onuses for this Charter application as set out in the Pankiw decision, I do not find theCrown’s argument to be persuasive and I do find a breach of

section 7 of the Charter for the following reasons. [36] Mr. Justice Graesser states at paragraph 82 in R. v. Kilpatrick, 2013 ABQB 5 , 2013 A.J. No. 41 (ABQB), as follows: [82] .... The results of the analysis of the approved instrument is the main evidence of an accused's guilt. I do not think it can be said thata trier of fact could never have a reasonable doubt in the reliability of the machine if the maintenance log shows (for example) historicand perhaps chronic problems with the breathalyzer. That finding would depend upon the information in the log and perhaps an expertanalysis of that information.

Without the log, an accused could never know (for example) whether the breathalyzer he blew into was alemon. [37] My learned brother Judge Labach in Pankiw at paragraph 51 states: 51 The Defence has a difficult road to travel in order to show that a breath instrument malfunctioned or was not being operatedproperly, even after the Supreme Court read down the 2008 amendments to

section 258 of the Criminal Code. The accused's and thebreath technician's evidence as to what occurred at the time of testing is important and useful, but given the high degree of reliability ofbreath instruments proven through scientific testing, some evidence explaining any anomalies that may have occurred at the time oftesting is necessary. This is why the records sought by the Defence and/or some expert testimony is all important in order to pursue thiskind of a defence.

Given that this material is in the hands of the police and readily available, there is no reason why it should not bedisclosed as it may have some likely relevance to the Defence. 52 In R. v. Gubins, 2009 ONCJ 80 , [2009] O.J. No. 848 (Ont.

C.J.), in allowing the Defence application for the maintenance,calibration and usage logs for the Intoxilyzer, Pringle J. put it very succinctly at paragraph 39 where she said: [39] My final reason for ordering disclosure of these records stems from the amendments themselves, and the new emphasis thatParliament has placed on showing an error or malfunction in the approved instrument in order to establish a defence of evidence to thecontrary.

In my view, to refuse to provide readily available disclosure about the instrument just at the time that the defence is required tofocus on the instrument is completely contrary to the wide and generous approach to disclosure advocated by the Supreme Court ofCanada since Stinchcombe. ... [38] In the case of R. v. Olesksiuk, 2013 ONCJ 50 , 2013 O.J. No. 604, Justice S.G. Radley-Walters states at paragraph 16- 18: 16 I agree with Justice Pringle’s conclusion that the threshold for likely relevance is a low one that favours disclosure, and is to beinterpreted with a wide and generous application.

The burden to justify non-disclosure is on the Crown to show that the requesteddisclosure is "clearly irrelevant". I find, therefore, that the disclosure sought by the Applicants in this case falls under the test fordisclosure as set out in the case of R. v. Stinchcome (1991), (SCC), 68 C.C.C. (3d) 1 (S.C.C.). 17 As indicated previously, the Supreme Court of Canada in the decision of R. v. St-Onge Lamoureux, supra, handed down a decisionconcerning the constitutionality of certain provisions of s. 258 of the Criminal Code of Canada.

Madam Justice Deschamps in thatdecision made specific reference to the onus placed upon an accused person to raise a reasonable doubt as to whether or not an approvedinstrument was operating properly. Justice Deschamps stated in paragraphs 26, 27, 37, 38, 41, 42, 43 and 48 of that decision as follows: [26] The Committee's recommendations shed light on the circumstances that might explain how an instrument malfunctioned or wasused improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments,which, it should be mentioned, are used Canada-wide.

Hodgson's report, which the prosecution itself relied on as a source of thestatutory amendments, refers to the importance of proper operation and maintenance: To achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operated by qualifiedpersonnel using procedures based on good laboratory practice. [p. 83]

Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(

c) and s. 258(1)(d.01), since theaccused can rebut the presumptions by showing that the instrument was not properly maintained or operated. [27] However, Parliament did not adopt the Committee's recommendations, and the prosecution referred to no alternative mechanismsthat would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failureattributable to improper maintenance or operation is insignificant.

The trier of fact could therefore entertain a reasonable doubt about thevalidity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial. But ajudge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required to convict theaccused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1)(c). In view of the mechanism forapplying the statutory presumptions established in s. 258(1)(c), I find that s. 258(1)(

c) and s. 258(1)(d.01) infringe s. 11(

d) of theCharter. [37] Once the objective has been found to be valid, the Oakes test requires that a rational connection be established between theobjective and the means adopted to attain it. It is clear from the words of s. 258(1)(

c) and s. 258(1)(d.01) Cr. C. that evidence relatingdirectly to the instrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzer test results. Amere inference based on an individual's rate of absorption or elimination of alcohol, which is what was required for a Carter defence, isno longer enough.

The accused must now raise a doubt that the instrument was functioning or was operated properly. [38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument isrationally connected with Parliament's objective. According to the scientific evidence on which Parliament relied, if the instrumentfunctions properly and all the relevant procedures are followed, the results should be reliable.

It is therefore logical to provide that theresults can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in theinstrument itself or in the procedure followed in operating it. [41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament hasrecognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might bedeficiencies in the maintenance of the instruments or in the test process.

What the new provisions require is that evidence tending to castdoubt on the reliability of the results relate directly to such deficiencies. [42] Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not beappropriate to rule on the specific limits of that evidence. I will merely note that, in light of the evidence accepted by the trial judge,there are several pieces of evidence that can be provided to a person who is charged under s. 253(1)(

b) Cr. C., including the breathalyzerreadings, the qualified technician's certificate and the analyst's certificate concerning the sample of the alcohol standard. [43] In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly andfor assuring the quality of breath alcohol analyses.

It can be inferred from these recommendations that the instruments may not functionoptimally if the suggested procedures are not followed. [48] The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the realissue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is under the prosecution'scontrol.

The prosecution must of course disclose certain information concerning the maintenance and operation of the instrument, but itis free to establish procedures for tracking how such instruments are maintained and operated. Moreover, the prosecution has controlover the people who maintain and operate the instruments. (My Emphasis). 18 I reviewed the decision of my brother judge, Justice Fraser in the case of R. v. Muzuva [2009] O.J. No. 5164.

I specifically agreewith his conclusions to the effect that if Parliament has chosen to require accused persons wishing to challenge the readings of approvedinstruments, then they must show that there is an error in the machine. It is only logical therefore that Parliament must havecontemplated that accused persons would have access to the evidence required to meet the onus placed upon them by virtue of theamendments to s. 258. [39] Further on in the Supreme Court of Canada decision of R. v.

St-Onge Lamoureux, Justice Deschamps states at paragraph 78: 78 Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, thisdoes not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard. Theaccused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. Ifthe prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure(see R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411). In short, the accused might rely, for example, on a maintenance logthat shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he orshe might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254). [40] Finally the manual on the Intox EC/IR II of August 2010 which was in use at the time of these offences by the RCMP listsunder

Chapter G, Quality Assurance. In this

chapter at page G-2 under Quality Assurance the purpose is the documentation process of a

scientific procedure. It encompasses all the rules and checks required to assure accuracy and reliability of the results. This includes everything from having standard procedure, standardized training for Qualified Tech, proficiency testing of QTs, the maintenance of logs (instrument, maintenance, personal, proficiency testing, alcohol standard change) … at page G4. [ 41 ] Personal Log: Each QT should maintain a personal log which is a record of all breath tests conducted. These logs can be used to confirm a QT’s experience with the instrument.

Alcohol Standard changes could also be logged in the personal log, as it speaks to the QT’s total experience with the instrument. [ 42 ] Instrument Usage Report: The Intox EC/IR II has the capacity to electronically store a large amount of test data. The instrument is capable of printing a

summary list of all tests conducted over a defined period of time. This information can be obtained by periodically generating a usage report (Ctrl+F5). This report may be used to satisfy disclosure requests. [ 43 ] Maintenance Log: Records of any maintenance conducted on an instrument should be kept in the maintenance log. As per ATC guidelines, it is recommended that approved instruments and associated components (simulators) have annual service. It must be conducted by an authorized service agency.

The annual service conducted by the authorized service agency, and any other maintenance on the instrument should be documented in this log. [ 44 ] Alcohol Standard Change Log: Documentation related to Alcohol Standard changes must be retained and kept in a file. This may include the Certificate of an Analyst which certifies the lot of Alcohol Standard, as well as the supervisor test report generated at the time of each Alcohol Standard change. [ 45 ] Breath Test Bulletins: The RCMP Toxicology Services Program and/or your local Traffic Services

Section will periodically send out breath test bulletins. These bulletins may contain information regarding any updates, procedural changes, or general information that arise from case law or general breath test issues. These bulletins should be made available for all QTs. [ 46 ] In conclusion, when you review the relevant passages from the Supreme Court of Canada in St-Onge Lamoureux it is clear Parliament had other options that would have reflected the Crown ’ s position in this hearing.

It did not take them and as a result the Crown ’ s position in this hearing on disclosure is not tenable and the legislation by its wording created a duty on the Crown to disclose information about the maintenance and operation of the machine. [ 47 ] The RCMP manual suggests these records are readily available and necessary to ensure proper operation and maintenance of these Intoxilyzers and the Defence is entitled to view these records to ensure proper practices have been followed with regard to the specific machine utilized in the breath tests that are taken. [ 48 ] I do not find any factual difference from the Pankiw decision to the case at bar that would suggest a different disclosure requirement.

The drifting of the ASD is not before this Court. [ 49 ] Accordingly, I shall make the same order for disclosure of all calibration logs, maintenance logs, instrument usage logs, alcohol standard change logs, the simulator annual certificates and the analyst’s certificate or reporting letter purporting to state the suitability of the alcohol standard solution for the Intoxilyzer ER/IR II, Serial No. 011349 from December 2010, when the machine was put into service up to the date of the first maintenance check up. [ 50 ] Although, I have trouble seeing how subsequent calibration tests will be relevant to the case at bar, under cross-examination Sgt.

Skinner did testify he would investigate this issue if there was consistent wild swings in the calibration testing. [ 51 ] I also order that the maintenance log shall be disclosed and for the purposes of this hearing the maintenance log shall include the initial set-up file, calibration and any further maintenance notes up to and including the first maintenance check up. For future reference in the event this machine had been already serviced for maintenance it would be the maintenance log for the servicing prior to and subsequent to the breath tests of the Accused.

If the machine had not yet had its annual maintenance servicing then the maintenance

log shall include the initial set-up file and first annual maintenance service records. [ 52 ] I did not appreciate the Crown position on this matter that no such maintenance logs or file exited. The Crown evidence in this case is the initial set-up records would be put in the maintenance file or log. Further, there must have been at least two maintenance servicings on this Intoxilyzer for the years 2011 and 2012 prior to this application from the date of the breath testing or the Intoxilyzer would not be properly maintained.

The Crown’s evidence is that the Intoxilyzer is to be maintained annually and the breath tests took place in early 2011. This particular Intoxilyzer had been in use for approximately 5 months from December 2010. Finally, the maintenance log was specifically mentioned by the Supreme Court of Canada in paragraph 78 of St-Onge Lamoureux to be disclosed. No valid reason was given for its lack of disclosure. [ 53 ] Finally, all service bulletins concerning the Intoxilyzer ER/IR II shall be disclosed to the Defence. P. Koskie, J