R. v. Hoogendoorn, 2013 ONCJ 525

Information No. 4611-998-12-2492-00 Citation: R. v. Hoogendoorn , 2013 ONCJ 525 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DOUGLAS HOOGENDOORN ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE N.S. DOUGLAS On August 27, 2013 at GUELPH, Ontario ********** APPEARANCES : M. Dolby Counsel for the Crown B. E. Starkman Counsel for Douglas Hoogendoorn (

i) ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S

********** ********** Reasons for Judgment 1 ********** Transcript Ordered: August 27, 2013 Transcript Completed: September 23, 2013 Ordering Party Notified: September 23, 2013 R E A S O N S F O R J U D G E M E N T DOUGLAS, J. (Orally) : Douglas Hoogendoorn was charged on November the 16 th , 2012 with two counts; impaired driving and driving with more than 80 milligrams of alcohol in his system. I heard the trial on July the 4 th of this year.

At the end of the trial, I found him not guilty of the impaired charge and I reserved judgment on the over 80 charge because of an argument made by the defence that, in a nutshell, is a relatively simply issue. To put it as simply as I can, the breath technician did not perform a self-test when the accused was tested on the Intoxilyzer 8000C. The issue is that the Centre of Forensic Science training manual recommends that the breath technicians, along with the tests that the Intoxilyzer 8000C internally does, also do a self-test before taking the tests from the defendant.

The issue is in this a case - where the breath technician testifies that in his training it is not necessary to do the self-tests because the machine itself tells him that the machine is in proper working order, does this raise a doubt that the Intoxilyzer was not operated properly. Counsel, at the time, were not able to provide me with case law directly on point, although the Crown has since submitted a case called R. v. Ketler [2013] O.J. No. 3081 , a decision of my Brother Judge Campbell out of Windsor, and Mr. Starkman has submitted his response to that case and his

interpretation of it and his submissions on it, and he has also submitted a case called R. v. Feeney [2013]

O.J. No. 2831, from my Brother Justice J.J. Douglas, and a case called R. v. Greenough [2013] S.J. No. 322, a decision of theSaskatchewan Court of Queen’s Bench. I have, in the meantime, found three other cases that I am going to refer to on this issue. Briefly, the facts of this case were that the accused was stopped on November the 16th, 2012 at 7:08 p.m. He had been travelling at anunusually high rate of speed and had to screech to an abrupt stop for a red light. The police stopped him.

He exhibited signs ofimpairment, sufficient for Constable Bracnik to arrest him on reasonable and probable grounds, that is in Constable Bracnik’s evidence,he was off balance, unsteady on his feet, he had a strong odour of alcoholic beverage on his breath, his eyes were glassy, and he hadwhat Constable Bracnik referred to as ‘delayed speech’. He was arrested for impaired driving. He was given the breath demand and taken to the Rockwood Ontario Provincial Policedetachment, where he was turned over to Constable Rogers, the breath technician.

Constable Rogers testified that the accused provided two suitable breath samples, one registering 128 milligrams, and the otherregistering 119 milligrams of alcohol per 100 millilitres of blood. Constable Rogers testified that he was notified at 7:18 p.m. by Constable Bracnik that he would be needed as a breath technician. Hewent to the Rockwood Detachment. The Intoxilyzer 8000C was in standby mode. Constable Rogers, a qualified breath technician, prepared it and the accused entered thebreath room at 8:04 p.m.

Constable Rogers noted the strong odour of alcohol on the accused’s breath; his face was flushed; his eyeswere bloodshot. He said, however, that his speech was good. He was cooperative. The physical tests that he conducted, the accusedpassed all of those. Constable Rogers was not asked an opinion as to whether or not the accused’s ability to operate a motor vehicle wasimpaired by the consumption of alcohol. And so, it is as a result of Constable Rogers’ evidence that I was in some doubt that the Crownhad proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired.

That then led to the issue ofthe over 80 charge. Constable Rogers said he conducted the quality assurance tests on the Intoxilyzer 8000C, that is the machine goes through its own testsin order for the Constable to come to the conclusion that it was in proper operating mode. The diagnostics check was done at 7:46 p.m. The calibration check was done at 7:49 p.m., and, after concluding that the machine was in proper working order, the accused was testedon it on two occasions. In cross-examination Constable Rogers was asked if he did a self-breath test. He said he did not.

He said that the self-breath test is notnecessary for him to determine that the machine is in proper working order. The defence counsel put to him that the Centre of ForensicScience training manual recommends that the breath technician do a self-breath test, and since he did not follow the training manual thenthe argument is that I should be left in a doubt that the machine was operated by the operator properly. The cases that I am going to refer to are as follows: R. v. Ahmed. It is a decision of Madam Justice Tuck-Jackson. It is found at [2010], O.J.

No. 1500, but it is also reported at 2010 ONCJ130 , 253 C.C.C. (3d) 378. I just want to refer to a few paragraphs in that decision. It was a very thorough decision that goes onfor 145 paragraphs, and part of it concerns the disclosure application. In that decision, which analyses very thoroughly (and a lot of workwas obviously put into this judgment by Her Honour) in this case the Intoxilyzer 5000C and how it is operated and whether it isoperating properly.

Justice Tuck-Jackson refers to the Canadian Society of Forensic Sciences, the Centre of Forensic SciencesCommittee, and she says, at paragraph 13, in referring to the document called Recommended Standards and Procedures of the CanadianSociety of Forensic Science Alcohol Test Committee, which was Exhibit 6 in that trial, she says: “This document is best understood as a statement of “best practices”. It is not to be taken as setting out evidentiary or legalprerequisites for the successful prosecution of a drinking and driving charge.

Paragraph 14: “Perhaps another way of looking at the relevance of the Alcohol Test Committee recommendations is to understand that any deviation from them should not be seen to

necessarily place the reliability of any particular Intoxilyzer 5000C test results in jeopardy. This idea is expressed in the CFS Intoxilyzer 5000C Information Sheet....” Much later on, in her judgment, she says, at paragraph 87: “Before receiving a breath sample of unknown alcohol concentration, the Intoxilyzer 5000C undergoes a series of self-diagnostic tests. All of this information is recorded on the Intoxilyzer 5000C test sheet. In this case, it appears on what has been marked as Ex. 5A on this application. Ex. 5A confirms that the instrument passed all of the self-diagnostic tests.

Had any of these tests raised a concern, either an “error” message would have appeared, prompting the operator to shut down the system, or the system would have shut itself down. Self-diagnostic testing continues throughout each phase of the testing process.” At paragraph 89: “The Intoxilyzer 5000C test sheet marked as Ex. 5C on this application sets out what took place next. After a test of the ambient air indicated that there was no detectable alcohol present, a test subject, presumably the officer/operator performed a self-test, generating a result of 0 mg of alcohol in 100 mL of blood.

Following the officer’s test, another air blank was performed which generated a result of no alcohol present in the ambient air.” And two more paragraphs I wish to refer to, paragraphs 91 and 93: “Wholly apart from the self-diagnostic testing outlined above, each time the instrument proceeds to a calibration check or a subject test, it first completes ten system checks and

three internal standard checks summarised in the CFS Intoxilyzer 5000C Information Sheet, which forms part of Ex. 2 on this application, as follows: • ...The system checks assess the status of a variety of Differential Voltage Monitoring (DVM) parameters. These include adetermination of its electronic zero reference point, stability of the electronic scale, and the available workload. The temperature of thesample chamber is again assessed as described above. Internal standards are a means of checking the ability of the 3-channelmicroprocessor to convert electronic signals into the correct BAC.

The voltages of the 3-channel processor are checked to determine ifthey have deviated by more than five percent from their original set points. The successful completion of this component 0 the breathtesting sequence permits the sequence to continue and is signified by the appearance of “INTERNAL STD PASSED” on the test record.

If the instrument detects an error in any of the 10 system checks or the 3 internal standard checks it displays an appropriate error messageon the screen, the breath testing sequence is automatically terminated, an alternating high/low tone is emitted, and the error message isprinted on the test record....” “In

summary... • ...at the end of a typical two breath test procedure 40 system checks, 12 internal standard checks, 6 blank tests, 2 calibrationchecks using an alcohol standard and 2 subject tests (in acceptable agreement) will have been conducted...” Justice Tuck-Jackson concludes at paragraph 140 with an often-quoted comment from the Ontario Court of Appeal in R. v.Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, it says: “We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been somesuspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity.

These provisionsmust be interpreted reasonably and in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliableevidence. [emphasis added]” I am grateful to Justice Tuck-Jackson for that case in Ahmed, and I take from it that even though there were self-tests done there that it isnot necessary to have a self-test as was testified to by Constable Rogers in the case before me that the instrument itself is reliable and solong as the breath technician is satisfied that all of the tests in the machine that it conducts itself have been passed then the machine is inproper working order, and that is a reasonable conclusion.

There are two other cases that I wish to refer to. One was by Madam Justice Mulligan and she decided a case, R. v. Martin [2008] O.J.No. 3903, where the accused was acquitted but there was a quotation at page 22 of her judgment that is referred to in the case that reallysettles this issue, for me, and that is the case of Madam Justice Wein out of the Superior Court, and it is a case called R. v. Smith. The judgment was heard on August the 22nd of last year and it can be found at [2012] O.J. No. 3933.

Madam Justice Wein quotes paragraph22 of Madam Justice Mulligan, but the decision of Smith is a decision that assists greatly in this issue. Madam Justice Wein says, atparagraph 12: “Training on the breathalyzer is provided by the Centre of Forensic Sciences. The training manual for the A1 Intoxilyzer used in this case provides: Invalid sample. Reason: residual mouth alcohol is detected (usually) or there is a sudden decrease in the force of providing the sample(rarely).

Corrective action: Although the ‘RE-TEST’ option is available immediately, the subject should not be tested again until after awaiting period of 17 minutes has expired.” Now, in the case before her, the breath technician said he did not wait the 17 minutes; he did not think it was necessary, and he knewwhat the manual said but he did not follow the recommendations of the manual. Justice Wein goes on to say, at paragraph 13: “It is apparent that the

summary in the manual makes no distinction between invalid samples caused by residual mouth alcohol as opposed to a decrease in force, meaning the physical manner in which the breathing samples are

provided. In this case, the breathalyzer technician indicated that in her view, based on her training and experience, there did not need to be a waiting time in cases where there was no residual mouth alcohol. She knew from the timing and circumstances of the arrest that in this case residual mouth alcohol was not a problem...and it was her view that the problem was that the force had not been sufficient to register a sample...” “...When asked about her failure to wait for 17 minutes, she stated: “there doesn’t need to be a waiting time.

The first sentence I read said, residual mouth alcohol or ... and the corrective action is indicating what to do if there is residual mouth alcohol. There is no residual mouth alcohol here, therefore there is no need to wait 17 minutes. ” After confirming that she was trained on the Training Aid, she agreed that the corrective action prescribed in the Training Aid does not speak specifically of mouth alcohol.

When it was suggested that the corrective action applied to either mouth alcohol or the sudden decrease in the force of providing the sample she responded that corrective action is simply for residual mouth alcohol, not for the second possibility...” The final thing that I want to say that I agree with, that Justice Wein said is this, at paragraph 21: “It is apparent that the officer’s evidence, distinguishing the corrective action required for force decrease issues, was consistent with training known to be given by the Centre of Forensic Sciences. In a case referred to by

the trial judge in his reasons...” And she now quotes, R. v. Martin , [2008] O.J. No. 3903 (O.C.J.) , an expert witness called (whose name, coincidentally, was also Martin), “...Ms. Martin from the Centre of Forensic Sciences, testified concerning the teaching provided on this point.

In Martin the officer had also testified that according to his oral instructions and training from the C.F.S. personnel, the ‘degree of force’ cause of an invalid sample message does not require the technician to wait before attempting to receive a subsequent breath sample from the subject...” Justice Wein then quotes paragraph 22 of Justice Mulligan and says finally: “Obviously, the manual and the training should be made consistent.

However, Martin” (that is Justice Mulligan’s case) “does provide support for the trial judge’s acceptance of the officer’s testimony that the results were accurate and that the failure to follow the manual did not, in effect, constitute evidence to the contrary. He was entitled to make the finding on the evidence before him, even though that evidence was more streamlined than that given in Martin .” To quote then the last case referred by counsel before me of R. v. Ketler [2013] O.J.

N. 3081, paragraph 32: “...I am not satisfied that a failure to follow a recommended procedure for taking samples of breath will automatically equate to operator error...” “...To my mind, it is not sufficient simply to be able to point to a procedural error in circumstances such as these where it is plain on the facts as I have found them that the error was of no consequence.” I, therefore, accept Constable Rogers’ evidence that even though the manual suggests that the breath technician do a self-breath test I accept Constable Rogers’ evidence that he was of the view that the Intoxilyzer 8000C was in proper working order because of all of the self-tests conducted and that the machine passed all of those tests, and therefore the argument that because he did not do a self-breath test

should raise a doubt that it was operating properly - that argument fails. I find that the Crown has proven its case beyond a reasonable doubt on count number two and I find the accused guilty of the over 80 section. ...SUBMISSIONS ON SENTENCE BY MR. STARKMAN ...REASONS FOR SENTENCE ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Nicki Hettinga, certify that this document is a true and accurate transcript of the recording of R. v.

Douglas Hoogendoorn in the Ontario Court of Justice held at 36 Wyndham Street South, Guelph, Ontario taken from Recording No. 4611-CRTRM#2-20130827- 091237-6-DOUGLAN.dcr, which has been certified in Form 1. ____________ _______________________________ Date Certified Court Reporter