Her Majesty the Queen - v. -, 2017 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 046 Date: June 30, 2017 Information: 90122298 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russel Joseph Musey Appearing: Andrew Wyatt For the Crown Michael Owens For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Musey is charged with operating a motor vehicle while over the legal limit of .08 contrary to section 253(1) (

b) of the Criminal Code . The Crown proceeded by way of

summary conviction and directed a stay on the other charge on this Information which was impaired driving.

[ 2 ] On May 15, 2016, Cst. Joshua Scott of the RCMP stopped Mr. Musey on 4 th Avenue in Yorkton, just after 12:45 a.m. After speaking to him, Cst. Scott detained Mr. Musey for an approved screening device (ASD) test and, upon obtaining a fail result, arrested him for impaired driving. He then read him the Intoxilyzer breath demand and drove him to the police detachment, where Mr.

Musey provided two samples of his breath into an Intox EC/IR II breath instrument, with readings of 100 mg% at 1:32 p.m. and 90 mg% at 1:53 p.m. [ 3 ] In an earlier decision on December 16, 2016 [1] , I dismissed the defence application under section 24(2) of the Charter of Rights and Freedoms . The evidence of Cst. Scott was applied from the Charter voir dire to the trial, and defence evidence was called on April 28, 2017, when expert witness Michael Rosland testified by video from Vancouver and Mr. Musey testified in his own defence. [ 4 ] The issues to be determined on this trial are:

(1) Whether Mr. Rosland’s evidence about the functioning of the Intox EC/IR II breath instrument raised a reasonable doubt that Mr. Musey provided two samples which each exceeded 80 mg% and, in so doing, rebutted the presumption of accuracy in section 258(1) (

c) of the Criminal Code ; and

(2) Whether Cst. Scott failed to properly conduct the observation periods of Mr. Musey before each breath test so as to rebut the presumption of accuracy in section 258(1) (c). II. THE EFFECT OF MR. ROSLAND ’S EVIDENCE [ 5 ] Section 258(1) (

c) of the Criminal Code provides, in part, that when samples of breath have been taken after a demand under section 254(3) , the results are conclusive proof that the accused’s blood alcohol concentration (BAC) at the time of the analyses and at the time the offence was alleged to have occurred are the concentration in the readings if they are the same and, if not, the lower reading, in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly. [2] [emphasis added] [ 6 ] As a result, the first issue in this case is whether the presumption that the breath readings taken from Musey at the detachment were accurate, as a result of section 258(1) (c), was rebutted by Mr.

Rosland’s evidence. Put another way, applying guidance from the Saskatchewan Court of Appeal on this issue, did Mr. Rosland’s evidence tend to show that the instrument used in this case malfunctioned or was operated improperly and, if so, did this evidence raise a reasonable doubt as to the accuracy of the readings so as to rebut the presumption of accuracy? [3] [ 7 ] Mr. Owens argued that Mr. Rosland’s evidence on the margin of acceptability of the Intox EC/IR II breath instrument was evidence which raised a reasonable doubt that both readings obtained from Mr.

Musey were greater than 80 mg% and that this, in turn, raised a reasonable doubt about the accuracy of the readings so as to rebut the presumption of accuracy. For the reasons that follow, I disagree. Mr. Rosland ’s evidence [ 8 ] Mr. Rosland is a forensic toxicology specialist employed by the RCMP in Vancouver. He was qualified as an expert respecting, and was allowed to give opinion evidence on, the operation of the Intox EC/IR II, an approved instrument under the Criminal Code of Canada .

He testified that this approved instrument has a margin of acceptability within plus or minus 10 mg% and said that any measuring device has an inherent variability in result, which is represented by this margin. Mr. Rosland, as well, said this instrument rounds down, so that, for example, any reading between 150 and 159 mg % would round down and appear on the instrument as 150 mg%. Given the margin of acceptability of this instrument, he said it is possible that a reading of 90 mg% could be as low as 80 mg%, as such a reading is within this margin.

[ 9 ] On cross-examination, he admitted that he was not in a position to give an opinion about the specific facts of this case, nor had he been provided with any information about Mr. Musey’s case. He, as well, admitted that when he gives opinion evidence in court, it is typically after he gets information about the case and questions provided to him before he testifies, which was not the case here. [ 10 ] Regarding the operation of this breath instrument, Mr. Rosland said that in most cases the BAC disclosed by a breath sample is less than the blood alcohol content in a blood sample.

He said that the exception to this is if there has been recent consumption before the test. In his opinion this breath instrument underestimates the BAC in a person by between 10 and 15 %. He said that the variability of a result from this breath instrument comes from the individual tested, as an individual may not provide a full sample from his or her lungs.

As a result, the truest measure of BAC will come from the deepest part of a person’s lungs. [ 11 ] On redirect evidence, he was asked if a person provided samples which registered 100 mg% and 90 mg% on this breath instrument, whether, given the margin of acceptability, this could mean a reading of 90 mg % and 80 mg %, and he responded that “it was possible”. Analysis [ 12 ] The same defence argument presented on behalf of Mr. Musey was put forward in R v Schnurr [4] .

Justice Brown in that case adopted the standard to be applied from the Saskatchewan Court of Appeal’s decision in Albus [5] , and held that the evidence in Schnurr of a police officer who was a qualified technician on this same instrument - that during his training on this instrument he was instructed that it had a .10 error ratio and, as a result, .09 might have actually been .08 - was evidence he described as being “in the realm of speculation and not ‘evidence tending to show that the approved instrument was malfunctioning or was operated improperly’”. [6] [ 13 ] Justice Brown then continued his assessment of the defence evidence in that case at para 68: Even if one accepts that a range of inaccuracy inherent to the intoxilyzer is contemplated by the phrase "the machine was malfunctioning or was operated improperly", all the defendant accomplished at trial was to raise that a deficiency "is possible".

It is not a "real doubt" that when the instrument was functioning or operated properly. It is a mere possibility that the machine here was showing .09 when, in fact, the actual reading was .08. More evidence than was made available here is required to establish what is necessary as per s. 258(1) (

c) to raise a reasonable doubt that rebuts the presumption. [ 14 ] Justice Brown, as well, noted that the above conclusion was in accordance with that drawn by the Supreme Court of Canada in R v Moreau [7] . The expert evidence in Moreau was markedly similar to Mr. Musey’s case. An expert in Moreau testified that the Breathalyzer used in that case was subject to a possible margin of error of 10 mg% more or less.

The Supreme Court, however, did not accept this as evidence to the contrary, and said, in part, that no evidence would be evidence to the contrary when it only demonstrated “the inherent fallibility of the instruments which are approved under statutory authority”. [8] Most relevant to this case, was Justice Beetz’s comments about the significance of Parliamentary approval of the approved instrument: It seems to me that when Parliament provided for the analysis of breath samples by way of approved instruments, it was aware of the limitations inherent in all instruments.

Parliament must be taken to have made allowance for these limitations in the provisions relating to the approval of certain kinds of instruments as well as in those setting the highest permissible level of alcohol in the blood at 80 milligrams in 100 millilitres of blood. [9] [ 15 ] In this case we have evidence from Mr. Rosland, an expert in the operation of this instrument, who said this instrument has a margin of acceptability of 10 mg%, but noted that any measuring device has an inherent variability in result.

In conclusion, when asked if given the margin of acceptability a reading of 90 mg% could mean 80 mg%, he said only that it was possible. [ 16 ] Taken together, I am not satisfied that Mr. Rosland’s evidence tends to show that this instrument was malfunctioning or was being operated improperly. I take from his evidence that a deficiency is at most possible. I view his evidence to simply be a statement

of the limitations inherent in this instrument, which Parliament must be taken to have considered and made allowance for in declaring the Intox EC/IR II to be an approved instrument under the Criminal Code . As a result, based on this argument about the effect of Mr. Rosland’s evidence, I do not hold a reasonable doubt that two samples in excess of 80 mg% were obtained from Mr. Musey. III. THE OBSERVATION PERIODS [ 17 ] As discussed above, section 258(1) (

c) contains a presumption that the breath readings obtained are accurate, in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly. There was no suggestion from the defence that this breath instrument malfunctioned, nor was there in my view any evidence to that effect. However, Mr.

Owens, citing legal authority from the Saskatchewan Court of Queen’s Bench in R v By [10] , argued that evidence at this trial constituted evidence of deficiencies in the test process which raised a reasonable doubt about the proper operation of the Intox EC/IR II breath instrument. For the reasons that follow, I disagree. [ 18 ] In By , Justice Barrington-Foote considered the question of whether a deficiency in the observation of a subject by the police could rebut this presumption. After considering the Supreme Court’s analysis of the amended section 258(1) (

c) in St-Onge , Justice Barrington-Foote commented on the applicability of this decision to the accuracy and reliability of an approved breath instrument: There is, in my view, nothing in the court's reasons in St-Onge which suggests that the court does not intend the plain meaning of these statements: that is, since accuracy and reliability depend on a properly operated and well-functioning machine, evidence of deficiencies in the functioning or "the test process" which could affect accuracy or reliability can be sufficient to rebut the presumptions. Indeed, only such evidence will do so.

Nowhere does the court suggest that there must be additional evidence linking the deficiency to a potential inaccuracy in the particular breath test results in the matter before the court, . . . [11] [ 19 ] Further, regarding the link between deficiencies in the observation period and rebuttal of the presumption in section 258(1) (c), and based on St-Onge, Justice Barrington-Foote stated: In the result, it is my opinion that St-Onge stands for the proposition that evidence which raises a reasonable doubt as to whether the breathalyser malfunctioned or was operated improperly may be sufficient, without more, to rebut the presumption of accuracy in s. 258(1) (c), at least where - as here - there is evidence that the improper operation might have produced test results which overestimated the blood alcohol content of the accused.

Further, it is my opinion that the evidence in this case meets that standard. I note, in particular, the evidence that the observation period was a mandatory part of the test process and that none of the police officers conducted the observation period at all, together with the evidence as to the reason for that observation period and the potential impact of mouth alcohol on the test results.

That constituted evidence of deficiencies in the test process that raised a reasonable doubt as to the proper operation of the breathalyser. . . . [12] [ 20 ] As a result, was there in this case evidence of deficiencies in the test process - here, the observation periods of Mr. Musey - which raised a reasonable doubt as to the proper operation of the Intox EC/IR II breath instrument? The evidence on the observation of Mr. Musey before his breath tests [ 21 ] Cst. Scott said his role during the two required observation periods was to watch Mr.

Musey to make sure he wasn’t putting anything into his mouth or burping up any alcohol or doing anything that could negatively affect the provision of samples. In doing so, he said he did not notice any burping, regurgitation or him drinking anything during those observation periods. While he said he had been told to watch a subject during the observation period for any evidence of mouth alcohol, he was not trained in the operation of, nor is he a qualified technician for, the Intox ER/IC II breath instrument.

As a result, I do not accept that he was able to give any credible evidence on the proper operation of this instrument. [ 22 ] In cross-examination, Cst. Scott admitted that in his general report on this case he mistakenly wrote that Mr. Musey was observed in a chair in the breath testing room, rather than just outside this room as he testified to.

[ 23 ] Cst. Scott admitted that during the observation of Mr. Musey, he got up and retrieved some papers, one of which was a driver's license suspension form, out of a drawer that was four or five feet away from where Mr. Musey was sitting. He, as well, admitted to making notes at the time of the observation of Mr. Musey, but said he did it as a form of multitasking by looking down for a second and writing and then looking back at Mr. Musey and observing him. While he may have briefly looked down at his note book, he said he never turned his back on Mr. Musey. [ 24 ] Mr.

Musey testified that at the detachment he was told to go to the hallway, where he sat in a chair across from the room where the breath tests were taken. He said there were three police officers in the area, Cst. Scott, a bald police officer and an older police officer. The bald police officer was the one who took the breath test from him and the older police officer had no involvement with him. [ 25 ] Mr. Musey does not have a criminal record, nor had he ever been pulled over by the police and charged. He said that, at the detachment, he was sitting in the chair and Cst.

Scott walked back and forth while he was waiting to take the breath samples. He said Cst. Scott was sitting in a chair beside him writing notes and was talking to the bald police officer, and then walked down the hallway to a drawer and got some paperwork. He said Cst. Scott was talking to the bald police officer for one to two minutes and then he was writing in his notebook and looking at his paperwork. He said Cst. Scott returned and sat down beside him twice before the first breath test. [ 26 ] Mr.

Musey as well said that between the first breath test and the second breath test, when he was sitting on a chair outside of the breath testing room, he burped twice. During both of these burps he belched acid into his mouth and swallowed it. He said he burped because of recently having drank alcohol and he was having problems with his stomach. He said the police officer did not tell him to advise him if he belched or burped. [ 27 ] On cross-examination, Mr.

Musey said his memory was not as good from the time after he was arrested and was in the police vehicle, but said it improved from the time he was at the detachment because he had a chance to relax a bit there. Turning his memory back to the initial court date of October 13, 2016, he said that he burped twice that day, once before court began and once before he testified in the afternoon. Mr. Musey admitted that, when he was first stopped by Cst. Scott, he told him that he had not had a drink, which was not true. Mr.

Musey was adamant that he was not feeling the effects of alcohol at the time, and recalled what happened at the detachment on the day he was charged. However, when asked why he lied to the police at roadside, he said he did not want to tell Cst. Scott that he had consumed a drink.

Analysis [ 28 ] What I must answer in this case is whether there was evidence tending to show: (1) the necessity of conducting a proper observation period, as a part of the test process, before breath tests were taken on the Intox EC/IR II breath instrument; and (2) how any deficiency in the test process could affect the accuracy or reliability of the Intox EC/IR II breath instrument. In my view, the legal standard established in By requires both evidence of a deficiency in the test process and how such a deficiency relates to the proper operation of the breath instrument. [ 29 ] As I said above, Cst.

Scott is not a qualified technician for this breath instrument and I do not accept that he could give credible evidence about how his observation of Mr. Musey could relate to the proper operation of the Intox EC/IR II. [ 30 ] While I am satisfied that Cst. Scott did not carefully observe Mr. Musey during the entirety of the observation periods - the length of time of each period which was never stated in evidence - and while I do not reject Mr.

Musey’s evidence that he belched twice before the second test, there was no evidence in this case about the potential effect of any undetected alcohol in a subject such as Mr. Musey’s mouth on the proper operation of the Intox EC/IR II, even from the expert Mr. Rosland. Nor was there any evidence that a deficiency in the observation of Mr. Musey and the presence of alcohol in his mouth might have produced test results on the Intox EC/IR II which overestimated his BAC. [ 31 ] As a result, considering the totality of the evidence regarding Mr.

Musey’s charge, I am not left with a reasonable doubt about the proper operation of the Intox EC/IR II in this case.

[32] The evidence in this case can be distinguished from that in By, where Justice Barrington-Foote noted there was: (1) evidenceabout the mandatory nature of, and reason for, the observation period required for the breath instrument in that case; (2) evidence aboutthe potential effect of mouth alcohol on the breath test results; and (3) “evidence that the improper operation might have produced test results which overestimated the blood alcohol content of the accused”.[13] These were not in evidence in this case, regarding the IntoxEC/IR II which Mr. Musey provided his breath samples into. IV. CONCLUSION [33] For the reasons stated above, and after applying the presumption in section 258(1)(

c) of the Criminal Code, I am satisfiedbeyond a reasonable doubt that Mr. Musey was operating a motor vehicle while over the legal limit on May 15, 2016, and he is foundguilty on that charge. ______________________ R. Green, J [1] 2016 SKPC 160. [2] As read down by the Supreme Court of Canada is R v St-Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187 [St-Onge]. [3] As per Herauf J.A. in R v Albus, 2015 SKCA 121 at para 9. [4] 2016 SKQB 207 [Schnurr]. [5] Supra note 3. [6] At para 65. [7] (SCC), [1979] 1 SCR 261 [Moreau]. [8] At para 13. [9] At para 14. [10] 2015 SKQB 86 [By]. [11] At para 158. [12] At para 159. [13] At para 159.