R. v. Carriveau, 2011 ONCJ 837

Citation: R. v. Carriveau , 2011 ONCJ 837 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JAMIE ADAM CARRIVEAU Before Justice C.S. DORVAL Ruling on an Application released on August 24, 2011 Mr. M. Geigen-Miller ................................................................................................. for the Crown Mr. K. Hall .......................................................................... for the accused Jamie Adam Carriveau Dorval, J.: [ 1 ] Mr.

Carriveau seeks an order for disclosure of information related to the Intoxilyzer 5000C unit used to analyze his breath on March 17, 2009. This application was heard prior to any evidence being called, and therefore the only source of information as to what led to the charges is found in the statement of facts filed by the Applicant in his Notice of Motion. I reproduce that statement of facts in order to give some context to the application. 1. On March 17, 2009, at approximately 18:20 hours Constable Turner was north bound on Elgin Street at Somerset Street waiting to turn west bound on Somerset Street. 2.

As the light turned red, Constable Turner observed the accused, who was traveling south bound on Elgin proceed through the intersection and red light. 3. Constable Turner made a “u-turn” and now proceeded south bound on Elgin Street initiating a traffic stop at the intersection of Elgin Street and Lewis Street. 4. Upon investigating, Constable Turner received Mr. Carriveau’s particulars and detected an odour of alcohol coming from Mr. Carriveau’s breath. 5. Upon further enquiry, Mr. Carriveau admitted to having consumed alcohol that night. A roadside demand was made of Mr.

Carriveau and for that purpose accompanied Constable Turner to his vehicle and wherein, after showing Mr. Carriveau how to use the screening device (alcotest 7410GLC), a fail was recorded. 6. Mr. Carriveau was placed under arrest and read breathalyzer demand, RTC, content 524 warning. 7. Mr. Carriveau was then transported to the OPS main station at 474 Elgin Street, Ottawa ON. K2P 2J6. 8. After exercising his right to contact counsel, Mr. Carriveau was handed over to Constable MacFarlane, a Qualified Breath Technician to provide two samples of his breath into the intoxilyzer. 9.

That intoxilyzer was Intoxilyzer model 5000C Serial #64-003638. The first sample of Mr. Carriveau’s breath were taken at 19:22 hours resulting in a reading of .129 and at 19:41 hours was a second sample was taken resulting in a reading of .121. 10. Mr. Carriveau was released from the station on a Promise to Appear. 11. In the course of preparing for trial counsel to the applicant requested of the responded disclosure of history of Intoxilyzer 5000C, Serial #64-003638 under date of a request made June 10, 2009.

[ 2 ] In support of this application, the affidavit of Mr. Kupferschmidt was filed and he was also called to give viva voce evidence as an expert witness. He is a toxicologist. [ 3 ] Essentially Mr. Kupferschmidt testified as to what he requires to be able to give an opinion as to the accuracy of the breathalyzer readings which resulted from the analysis of the defendant’s breath. He conceded that the Intoxilyzer 5000C is a reliable instrument but not an infallible one. He preferred the opinion that there are four factors that a chemist should look at when assessing an analysis.

The precision, specificity, accuracy and reliability of results. [ 4 ] In his view, a number of factors must be considered to assess each of those components. [ 5 ] Precision is the ability of an instrument to measure repeatedly, whereas accuracy is related to how well the results match the target value. Specificity relates to how well the instrument can record the presence of alcohol when in the presence of other substances and reliability is measured by looking at the performance of the instrument.

In order to assess these four criteria, he is of the opinion that he requires the information sought in the application. [ 6 ] Information is required as to the training of the operator of the device, any re-qualifications done, and whether he respects the procedures taught to him/her. He stated that the operator can commit an error that is not recognized by the instrument. In his opinion, the operators don’t understand the science behind the instrument. He conceded that in the absence of a video-tape of the process, the officer can only be cross-examined.

He stated that the police notes are only a starting point, as the notes of the police officer are sometimes not consistent with other evidence. [ 7 ] He requires the calibration and service logs of the instrument, the downloaded data stored in the instrument and/or downloaded onto a hard drive, as well as information as to the environment in which the instrument is operated in order to evaluate the reliability of the particular instrument. [ 8 ] Mr.

Kupferschmidt testified that the Standard Alcohol Solution depletes over time and that the Center of Forensic Sciences as established that it can be used for a period of 15 days or 50 calibrations. He stated that there should be a log recording the lot number, dates used, seals, and values obtained with the solution. In his opinion this is critical information as it may or may not affect the result obtained.

He testified that if he is being asked if the readings obtained respect the four criteria of chemistry, then he requires those records. [ 9 ] He stated that maintenance records are kept on the instruments and would show what parts were replaced and when. [ 10 ] The data downloaded to the instrument keeps track of the history of error warnings on each instrument. This information is also produced on printer cards that should be kept. In the absence of the ability to access the downloaded data after the passage of time, these printer cards should be accessed.

In his opinion, the calibration checks for 10-20 days prior to and after the reading should be examined. [ 11 ] In cross-examination, Mr. Kupferschmidt testified that he is aware of the process of testing required of a proposed instrument prior to its approval by parliament, but did not agree that it was rigorous. In his view, there is a lack of scope on evaluation of instruments and more could be done. He does not agree that the academic literature on the testing of the devices is peer reviewed.

According to him, it is reviewed by segments of scientists who have a vested interest in the breath testing program and a limited number of people have access to the information on the internal systems of the device. He stated that he challenges his inability as a “defence expert” to get information which is accessible to the Center of Forensic Sciences. He is also concerned over the fact that the simulator is a device relied upon by the instrument yet not part of the approved instrument. [ 12 ] With respect to the results of air blank testing, Mr.

Kupferschmidt stated that instruments are calibrated to fail at 20 mgs/ 100 ml but that the ambient air could be at 19 mgs. He later conceded that the instrument adjusts its baseline for this in its analysis of the breath. He adds however, that this does not deal with other contaminants such as radio frequency interference. He nonetheless would like to see a record of ambient air fails on other occasions as this may provide information on the environment where the testing is taking place. In his view, the three readings done per test are convenient, not determinative as an objective measure.

On this issue, he conceded that ambient air will depend on the environment in that area at that time. According to him, a history of fails could suggest a concern with the location where the tests are being conducted. In his words, science does not want a room full of alcohol or interference. With respect to calibration checks, he stated that the simulator warms and controls the temperature of the solution which is recorded on the

thermometer. This temperature is significant to testing. He conceded that operator errors on the reading of the thermometer would notbe reflected in any record. [13] The witness admitted that testing of a sample of the Standard Alcohol Solution used in this case would now be useless as ithas long expired and any anomalies could be explained by its age. He stated that although manufacturers give certificates of complianceor conformity on simulators, there are no standards put in place for simulators. Its role is to bring the Standard Alcohol Solution to 34degrees. [14] On the issue of double error, Mr.

Kupferschmidt stated that two errors must occur concurrently without being deciphered bythe device. He has reproduced such errors in his laboratory by intentionally conducting tests improperly. A double error would not beapparent on the record of the test, but historical data would assist. [15] The Crown called Ms. Terri Martin in reply to this application. Ms. Martin is also a toxicologist, and she is presentlyemployed with the Center of Forensic Sciences.

She is currently the chairperson of the Alcohol Test Committee of the Canadian Societyof Forensic Science, as well as a member of the breath alcohol committee of the center of forensic science. Ms. Martin testified that theapproval process for the Intoxilyzer 5000C and other instruments includes testing for precision, specificity, accuracy and reliability. It ison the basis of that testing that the instrument is approved. She stated that the consensus in academic literature is that the Intoxilyzer5000C typically underestimates the blood alcohol concentration. Ms.

Martin testified as to the entire system of internal checksperformed by the instrument prior to testing. Her evidence on this was consistent with exhibit 3 and it is not necessary for me tosummarize this evidence for the purpose of these reasons. Ms. Martin testified that when called upon to verify the proper functioning ofthe instrument for a particular test, the following must be verified.

The accuracy of the data inputted, the date of testing must be thesame as the date of the incident, the simulator must be at the appropriate temperature, the air blank reading must be 0, the calibrationcheck must have been performed, the timing of the tests and the results must be consistent (not more than 20 mgs apart), the internalstandards were passed, there was an absence of errors, and the standard alcohol solution must have been changed within the appropriatetime frame.

She agreed that simulators are not subject to approval, but compared this part to a kitchen kettle; it is meant to elevate thetemperature of the solution only and therefore the temperature of the solution would show the functioning of the simulator. With respectto the standard alcohol solution, she testified that in Ontario, an analyst from the CFS must certify the solution prior to its use. If it wasflawed in any way, this would be reflected in the calibration check. [16] On the issue of double error, Ms.

Martin testified that she is familiar with this concept but is not aware of any confirmed caseof double error, and she has not seen any information showing that it exists. She stated that the requirement for a second sample ofbreath with an interval of 17 minutes ensures that any undetected mouth alcohol has dissipated prior to the second test. [17] Ms. Martin was not aware of any scenario capable of affecting the result of the analysis of the samples which would not bedetectable on the test record sheet.

According to her, the historical records of errors generated by a particular instrument would notprovide any information as to the working of the instrument of a particular day as the ambient air is transient and so is radio frequencyinterference. In cross-examination she stated that even if the technician proceeded with a flawed standard alcohol solution, the results ofanalysis would not be as the calibration check is independent of the subject test. What would be lost is the ability to verify thecalibration, and that would be apparent on the test record.

If the simulator was not connected, then the technician would be testing roomair and once again there would be no calibration check to confirm, and that would not be a valid test. [18] Ms. Martin’s review of the test record sheet filed as exhibit 1 revealed no cause for concern of the testing procedure or theaccuracy of the readings obtained. [19] There is no evidence before me as to the availability of any of the items sought to be obtained.

THE LAW [20] It is now trite law to state that the Crown must disclose all relevant information it obtained during the course of investigation,to the defendant, unless it is “clearly irrelevant”, privileged or beyond its control. In R. v. Egger (1993) (SCC), 82CCC(3d)193 at 204 Justice Sopinka elaborated on the relevance of the information. He stated: “One measure of the relevance of information in the crown’s hands is its usefulness to the defence: if it is of some use, it is relevant andshould be disclosed: Stinchcombe, supra at p.16. This requires a determination by the reviewing judge that production of the

information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as for example whether to call evidence.” [ 21 ] In R. v. McNeil

(2009) SCC 3 Justice Charron elaborated on this. She stated: “As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.

In considering the ambit of the information that can assist in the trial, regard must be given to the particular issue in the case and to the governing rules of evidence and procedure.” [ 22 ] There have been numerous decisions of this Court on disclosure applications for the records being sought by the defendant in this case. These applications followed the amendments to

section 258 of the Criminal Code . [ 23 ] The presumption at s. 258(1)(

c) now provides that the results of analysis of breath taken and analyzed in accordance with the requirements of s.258(1)(c)(ii-iv) constitute evidence of the blood alcohol concentration at the time of driving. The defendant can rebut that presumption with evidence that tends to show the following: -that the approved instrument was not functioning properly or was improperly operated -that the malfunction resulted in a reading that the blood alcohol concentration of the accused exceeded 80mgs of alcohol when it did not [ 24 ] The issue on disclosure applications in the context of allegations under s.253 (

b) of the Criminal Code must therefore be placed in the context of the onus on the accused . FINDINGS [ 25 ] There are conflicting decisions of this Court on this issue, but this is not surprising given the record upon which these applications are based seems to vary considerably. I must base my decision on the evidence placed before me and that alone. [ 26 ] The affidavit of Mr. Kupferschmidt filed in support of this application, includes his report attached as exhibit B to the affidavit. In this report, Mr.

Kupferschmidt gives the following conclusion in the second last paragraph: “Even if historical records are made available and a deficiency is identified, it would be extremely difficult, if not impossible, for a credible expert to opine as to the effect of that deficiency on a given set of breath test results, when those tests are conducted after the fact.” [ 27 ] On this basis alone, I would be prepared to find that there is no reasonable possibility that the information sought would be of assistance to the defendant. I will, however proceed to the analysis of the viva voce evidence as well. [ 28 ] Mr.

Kupferschmidt’s evidence focused on his scientific assessment of the breath testing process itself. His evidence as to the precision, specificity, accuracy and reliability of the Intoxilyzer 5000C may well be relevant information to the science supporting the designation of the instrument as an approved instrument, but it offered little in terms of basis for this application.

This Court’s role is not to question the approval of this instrument as an approved instrument, but to examine whether there is any reasonable possibility that additional information about the specific instrument used in this test or the specific operator who conducted this test would be useful to make full answer and defence. Mr. Kupferschmidt could point to no such evidence based on the record of information disclosed to date. Ms. Martin, on the other hand, testified that on her examination of the test record, all internal tests were passed, calibration was done and there is no evidence of any malfunction.

[ 29 ] More specifically, my findings with respect to the information being sought are as follows: -sample of alcohol standard solution: the passage of time has rendered this request useless as any deficiency could be attributed to the expiry of the solution -logs of usage of standard alcohol solution: the solution had been changed 2 days prior to this test, and Ms. Martin’s evidence was that the Center Forensic Science directs that it ought to be changed every 7 days.

The logs would not be meaningful. -simulator records: given the lack of approval process for the simulators, and the fact that a faulty simulator will be reflected in the lack of calibration check, I find that there is no basis for this request -test records pertaining to this investigation: I agree that any and all print-outs or record of testing on this investigation should be disclosed. -service records: given the evidence before me, there is no basis for the disclosure of this information.

The fact that a specific instrument was serviced in the past gives no information as to its ability to conduct and analyze a sample on this date, in the absence of some indicator that internal checks could not be performed.

There is not even any evidence before me that instruments that have been serviced in the past had malfunctioned without any indication of errors by way on internal checks or error signals upon testing. -downloaded data to a central computer: there is no evidence before me that the Ottawa Police Services downloads data after 50 tests have been conducted. -the alternative of print-outs on all 50 tests conducted prior to this one must be considered.

Once again, there is no basis on the record before me to conclude that this data would assist the defendant to establish some evidence that the instrument malfunctioned when conducting his test. [ 30 ] The legislated requirement that an accused person establish some evidence that tends to show a malfunctioning instrument and/or operator is not a license to embark upon fishing expeditions with respect to disclosure. There must be some air of reality to the application. On the record before me, there is none. I deny the application.

Released: August 24, 2011 __________________________________ The Honourable Justice C.S. Dorval