2021 QCCQ 6985, 2021 QCCQ 6985

Translated from the original French R. c. Abdourahman 2021 QCCQ 6985 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-109249-187 DATE: June 14, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ROSEMARIE MILLAR, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix - Impleaded party v.

SADIA ABDOURAHMAN ET AL Accused - Applicants (see the list of accused and file numbers in the schedule) and ATTORNEY GENERAL OF QUEBEC Impleaded party - Respondent ______________________________________________________________________ DECISION ON A CONSTITUTIONAL CHALLENGE AND VERDICT ______________________________________________________________________ Table of contents I. OVERVIEW ................................................................................................................... 3 II.

FACTS ........................................................................................................................... 3 A. Relevant factual evidence at trial ..................................................................................... 3 1. Interception of the applicant's vehicle ...................................................................... 3 2. Administration of the approved screening device and arrest ............................... 4 3. Transportation of the applicant to the police station .............................................. 4 4.

Preparation of the instrument .................................................................................... 5 5. Applicant’s first breath sample ................................................................................... 6 6. Standard out-of-range control test and second breath sample ............................ 7 B. Factual evidence relevant to the constitutional challenge ........................................... 9 1. Subsequent use of the instrument in dispute .......................................................... 9 2.

Preparation of the instrument and internal standard error .................................... 9 3. Standard out-of-range control test and first breath sample from Joshua Condo 10 4. Internal standard error and second breath sample from Joshua Condo .......... 11 C. Expert evidence relevant to the constitutional challenge ........................................... 13 1. Dr. Andréas Stolz ...................................................................................................... 13 2. Dr. Joseph C.

Anderson ........................................................................................... 15 3. Janine Arvizu .............................................................................................................. 17

4. Denis Hubert .............................................................................................................. 18 5. François Goupil .......................................................................................................... 22 6. Pascal Mireault .......................................................................................................... 26 III. ISSUES ....................................................................................................................... 29 IV.

ANALYSIS .................................................................................................................. 29 A. Does s. 320.31(1) Cr. C. violate the presumption of innocence guaranteed by s. 11 (

d) of the Charter ? ...................................................................................................................... 29 1. Legislative history and case law .............................................................................. 30 • Section 258(1)(c): a legislative restriction of the Carter defence ............... 30 • St-Onge Lamoureux: constitutional preservation of the defence of malfunction or improper operation ................................................................................................ 32 •

Section 320.31(1): a legislative response to St-Onge Lamoureux ............. 34 2. How the DataMaster DMT-C works ........................................................................ 36 3. Accuracy and reliability of results ............................................................................ 38 (

a) Elements of the ATC operational procedures .................................................. 38 (

b) The instrument is not linear by definition .......................................................... 46 (

c) The DataMaster DMT-C was not initially certified ........................................... 49 (

d) The DataMaster must be calibrated at three points ........................................ 52 (

e) The principle of the calibration interval means that a standard out-of-range control test invalidates all tests since the last completed control test ............................... 53 (

f) Mandatory quality assurance program .............................................................. 56 (

g) Maintenance records ............................................................................................ 57 (

h) The instrument has a measurement uncertainty which must be calculated 61 (

i) Ms. Abdourahman’s case .................................................................................... 62 B. Does s. 320.31(1) Cr. C. infringe the right to make full answer and defence guaranteed by s. 7 of the Charter ? ........................................................................................................... 72 C. Do ss. 254(3)(a)(

i) and 320.28(1)(a)(

i) Cr. C. infringe the right to be secure against unreasonable searches guaranteed by s. 8 of the Charter ? ............................. 73 D. In the affirmative, are ss. 320.31(1), 320.28(1)(a)(i), and 254(3)(a)(

i) Cr. C. justified under s. 1 of the Charter ? ........................................................................................................... 75 E. Decision on guilt ............................................................................................................... 75 V. CONCLUSIONS ........................................................................................................ 76 I.

OVERVIEW [ 1 ] Charged with operating a motor vehicle while her faculties were impaired by alcohol and with a blood-alcohol concentration of 80 milligrams of alcohol per 100 millilitres of blood, the applicant, Sadia Abdourahman, challenges the constitutionality of ss. 254(3) (a) (

i) and 320.31(1) of the Criminal Code ( Cr. C. ). She submits that these provisions infringe ss. 7 , 8 , and 11(

d) of the Canadian Charter of Rights and Freedoms ( Charter ) essentially on the ground that the approved instrument to analyze her breath samples is not scientifically reliable. [ 2 ] Ms. Abdourahman's file is a test case for several other accused who challenge the constitutionality of the same Criminal Code provisions. [1] The evidence adduced in Ms. Abdourahman's case in this regard is filed into the other records.

This judgment on the constitutional challenge applies to all the cases. [ 3 ] The applicant’s evidence does not support a conclusion on a balance of probabilities that the approved instrument, its use, and the breath test results it generates are not scientifically reliable. Consequently, ss. 254(3)(a)(

i) and 320.31(1) Cr. C. do not violate the

Charter . II. FACTS A. Relevant factual evidence at trial 1. Interception of the applicant's vehicle [ 4 ] On October 5, 2018, at approximately 3:00 a.m., Officer Olivier Tousignant of the Gatineau police department (SPVG) observed a vehicle moving south on Gréber Boulevard in Gatineau near the traffic lights at the corner of Maloney Boulevard. The vehicle stopped abruptly even though the light was green. [ 5 ] Officer Tousignant, whose vehicle was stopped on Maloney Boulevard heading west, saw four people inside a blue 2012 Nissan Sentra. He saw the vehicle start up again and drive past him.

The officer turned on the flashing lights and intercepted the vehicle. [ 6 ] When Officer Tousignant approached the vehicle, the four windows were open, the music was blasting, and the people were laughing. [ 7 ] Officer Tousignant informed the driver, later identified as the accused, Sadia Abdourahman, of the reason for the interception and noticed an odour of alcohol coming from inside the vehicle. [ 8 ] Asked to provide her documents, Ms. Abdourahman handed over only her driver's license then, at Officer Tousignant’s request, she gave him an envelope that contained the registration and insurance papers. 2.

Administration of the approved screening device and arrest [ 9 ] Officer Tousignant asked the accused to follow him to the back of the vehicle to blow into an approved screening device (ASD). [ 10 ] Officer Tousignant observed that the accused had difficulty finding the handle of her vehicle.

Once out of the car, she followed him to the police vehicle. [ 11 ] Officer Tousignant then realized that he did not have an ASD in his vehicle and radioed a colleague to bring him one. [ 12 ] While waiting, Officer Tousignant questioned the accused, who said that she had her last drink been more than 20 minutes earlier and that she had not had any candies or belched. [ 13 ] Officer Kim Pétrie heard the radio call around 3:00 a.m., while she was leaving the SPVG police station on Gréber Boulevard.

She went to the scene with an ASD. [ 14 ] At 3:17 a.m., Officer Tousignant ordered the accused to blow into the ASD after explaining the procedure to follow. Seeing that the accused placed the mouthpiece into her mouth without blowing, he explained to her that it was an order and that she had to blow, which she did at 3:19 a.m.

The result was “fail”. [ 15 ] Officer Tousignant arrested the accused for impaired driving and read her her rights. [ 16 ] Given his status as highway supervisor, Officer Tousignant had the vehicle towed and informed Officer Pétrie, who was present when the accused blew into the ASD, of the grounds so that she could take over the investigation. 3. Transportation of the applicant to the police station [ 17 ] At 3:24 a.m., after a

summary search, Officer Pétrie drove the accused to the police station and remarked that there was an odour of alcohol coming from the interior of her patrol car. [ 18 ] At the police station, at 3:30 a.m., Officer Pétrie searched the accused again and read her rights again. The accused called her sister, who is a lawyer. [ 19 ] Officer Pétrie observed that the accused’s eyes were red and glassy. 4.

Preparation of the instrument [ 20 ] Officer Dominique Ayotte, a qualified technician, conducted the breathalyzer tests. [ 21 ] Officer Ayotte has been a police officer since 2010 and a qualified technician since November 2013 after he completed a one- week training at the École Nationale de Police du Québec (ENPQ) in Nicolet.

He redid the training in 2017. [ 22 ] Officer Ayotte explained his ritual before conducting the tests: he checked the condition of the instrument, the hoses connecting it to the simulator and the printer, as well as the keyboard and the mouse. [2] [ 23 ] Officer Ayotte then printed out a ticket [3] about the alcohol standard stating that the alcohol standard was changed on September 24, 2018, and was valid until October 8, 2018, that the simulator used is Model 12V500, serial number MPI 491, from Guth

Laboratories Inc., and that the target value is 100 mg of alcohol. [ 24 ] Officer Ayotte uses a check list and said that he followed this list. [ 25 ] He checked the touchscreen of the instrument, described as a DataMaster DMT-C, serial number 200831. [ 26 ] He checked the analyst’s certificate [4] stating that he tested a sample of an alcohol standard identified as Laboratoire Atlas inc., Lot 27KF, designed for use with an approved instrument and that it was suitable for use with this instrument. [ 27 ] He checked the alcohol standard solution, which has to be replaced after 14 days or 50 tests.

The solution had been changed at 11:24 p.m. on September 24, 2018, and was valid. [ 28 ] Everything was consistent with the information appearing on the previous instrument printout. [ 29 ] He checked the simulator, cables, backlight, agitator, level of solution and its temperature, which read 34°C within 0.2°C, as required. [ 30 ] Officer Ayotte then obtained information about the accused from Officer Pétrie and the grounds for her arrest. [ 31 ] He then confirmed with Officer Pétrie that Ms.

Abdourahman had been observed for 20 minutes and had not consumed any alcohol, belched, or vomited. [ 32 ] He entered the file data into the instrument. 5. Applicant’s first breath sample [ 33 ] Officer Ayotte conducted the tests to obtain an AIACABA [5] sequence, which is programmed in the DataMaster device in Quebec and described as follows: A: System blank test I: Internal standard check A: System blank test C: Control test A: System blank test B: Subject breath test A: System blank test [ 34 ] At 3:47 a.m., Officer Ayotte conducted a system blank test that produced a result of zero, the expected value.

At the same time, he did an internal standard check that also passed.

However, the displayed control test was an error message, i.e., [ translation ] “simulator timeout”. [6] [ 35 ] This message was displayed because he could not conduct the control test within the 30-second window. [ 36 ] Officer Ayotte admits that he did not follow the ENPQ course manual that stipulates that in this situation, he should check the seal and connections of the tubes linked to the simulator. [ 37 ] Officer Ayotte therefore redid this other sequence and at 3:49 a.m. conducted a system blank test that produced the expected result of zero.

At 3:50 a.m., he conducted an internal standard check that passed. At the same time, he conducted both a control test, which also passed because the result displayed 99 (it must be between 95 and 105 mg), and a system blank test with the expected result of zero. [7] [ 38 ] He then conducted a first subject test involving a complete new sequence: [8] at 3:52 a.m., a system blank test displayed zero; at 3:53 a.m., an internal standard check that passed; another system blank test displayed zero; a control test displayed 100 mg, at 3:54 a.m. another system blank test produced zero and, at 3:56 a.m., Ms.

Abdourahman provided a breath sample which produced a result of 236 mg; at 3:57 a.m., another system blank test displayed zero as the result. 6.

Standard out-of-range control test and second breath sample [ 39 ] Officer Ayotte waited 20 minutes and did another sequence: [9] at 4:14 a.m., a system blank test produced zero; the internal standard check passed; another system blank test produced zero; at 4:15 a.m., he conducted a control test which displayed an error message, [ translation ] “standard out-of-range”. [ 40 ] Officer Ayotte explained that this message meant that the control value obtained exceeded the standards. This told him that there was a possible leak in the simulator.

He lightly tightened the cover of the container to block any leak and shook it lightly to remove the condensation on the inside wall. He then ensured that the tubes connecting the simulator to the instrument were properly connected.

[ 41 ] At 4:17 a.m., satisfied with what he had done, he completed another sequence: [10] a system blank test displayed zero; at 4:18 a.m., an internal standard check passed and another system blank test resulted in zero; a control test was normal and displayed 99 mg; at 4:19 a.m., another system blank test displayed zero; the applicant provided a second breath sample with a result of 234 mg; last, a system blank test displayed zero as the result. [ 42 ] Officer Ayotte explained the breath graph: Ms. Abdourahman started to blow at the 13th or 14th second, blew for seven seconds, and wanted to stop.

He removed the tube and explained how to provide an adequate sample, which she did from the 31st to the 46th second, blowing properly and steadily. [ 43 ] He observed a gap of less than 20 mg between the two “subject” tests, ended the sequence and printed a qualified technician certificate. [11] [ 44 ] He explained the test results to Ms.

Abdourahman and gave her the qualified technician certificate as well as the analyst’s certificate. [ 45 ] At 4:24 a.m., Officer Ayotte conducted a control test: a system blank test produced a zero but the internal standard check indicated an error. [12] In accordance with the ENPQ course manual, he purged the instrument and conducted another control test: [13] at 4:28 a.m., a system blank test produced a zero; another internal standard check produced the same error message. [14] He decided that the instrument was not functioning and testified that [ translation ] “the thing to do was to inform the person in charge of breathalyzer tests so that the person could send it for repairs or verification”. [15] As he found nothing in writing about this, Officer Ayotte does not recall how he informed the person in charge of the devices. [ 46 ] In sum, the sequences described above produced the following results: - Sequence 200831-3217 (exhibit P-1-C) 3:47 a.m. system blank test 0 3:47 a.m. internal standard check - passed simulator timeout - Sequence 200831-3218 (exhibit P-1-D) 3:49 a.m. system blank test 0 3:50 a.m. internal standard check - passed 3:50 a.m. control test 99 3:51 a.m. system blank test 0 - Sequence 200831-3219 (exhibit P-1-E) 3:52 a.m. system blank test 0 3:53 a.m. internal standard check - passed 3:53 a.m. system blank test 0 3:53 a.m. control test 100 3:54 a.m. system blank test 3:56 a.m. subject test 236 3:57 a.m. system blank test 0 - Sequence 200831-3220 (exhibit P-1-F) 4:14 a.m. system blank test 0 4:14 a.m. internal standard check - passed 4:14 a.m. system blank test 0 4:15 a.m. control test - standard out-of-range

- Sequence 200831-3221 (exhibit P-1-G) 4:17 a.m. system blank test 0 4:17 a.m. internal standard check - passed 4:18 a.m. system blank test 0 4:18 a.m. control test 99 4:19 a.m. system blank test 0 4:21 a.m. subject test 234 4:22 a.m. system blank test 0 - Sequence 200831-3222 (exhibit P-1-I) 4:24 a.m. system blank test 0 4:24 a.m. internal standard check - error - Sequence 200831-3223 (exhibit P-1-J) 4:28 a.m. system blank test 0 4:28 a.m. internal standard check - error [ 47 ] On cross-examination, Officer Ayotte stated that there was no way of knowing whether the qualified technician before him had received internal standard error messages because they are not recorded in a log. [16] [ 48 ] Ms.

Abdourahman did not testify in her defence and relies exclusively on her constitutional challenge under ss. 254(3)(a)(

i) and 320.31(1) Cr. C. B. Factual evidence relevant to the constitutional challenge [17] 1. Subsequent use of the instrument in dispute [ 49 ] Alexandrine Caya is an officer with the SPVG and has been a qualified technician since completing the ENPQ training in June 2018. [ 50 ] On October 10, 2018, she administered breathalyzer tests to Joshua Condo using the DataMaster DMT-C serial number 200831 in the designated breathalyzer room at the SPVG station. [ 51 ] It is the same instrument used for Ms.

Abdourahman’s tests and, according to the evidence, it was the first time it had been used since October 5, 2018. [18] 2.

Preparation of the instrument and internal standard error [ 52 ] At 4:39 a.m., after checking the device, she changed the alcohol standard solution because the one in the simulator had expired on October 8, 2018. [19] [ 53 ] To do this, she turned off the simulator, unplugged the wires and tubes, opened the simulator, emptied it, added the certified alcohol standard solution, [20] closed the simulator, did a leak test with the tubes, and prepared to conduct a test with her subject. [ 54 ] She conducted an “AIACA” sequence as a control test. [ 55 ] She conducted a system blank test and the result was zero, which was the expected result. [ 56 ] She then did an internal check of the device using an internal standard check and obtained the [ translation ] “internal standard error” message. [21] [ 57 ] Since she did not know all the error messages at that point, she consulted a document listing them along with the recommended

actions. [22] [ 58 ] The recommended action for this type of error is a purge and, if it happened again, the device had to be repaired. [ 59 ] Officer Caya does not recall whether she purged the device. [ 60 ] Officer Caya then conducted a second control test during which she began a new AIACA sequence (sequence 3226), that is, a system blank test, purged the device to reach zero, the expected result, a new internal standard check that passed, a control test that passed with a result of 105 milligrams, and a final purge, a system blank test with an expected result of zero. [23] 3.

Standard out-of-range control test and first breath sample from Joshua Condo [ 61 ] Officer Caya then started Joshua Condo’s subject test. [ 62 ] She explained the procedure to him and how to blow. [ 63 ] Officer Caya then started sequence 3227. [24] [ 64 ] She conducted a system blank test which resulted in zero, an internal standard check that passed, another system blank test which resulted in zero, and a control test that produced a result of 106, which is out of range because it must be within 5mg/100 mg of the target value. [25] [ 65 ] Officer Caya then checked the list of error codes, and the procedure to follow was to verify whether the simulator was sealed and the type of alcohol standard solution, then start another test. [ 66 ] Having changed the alcohol standard solution and checked that the simulator was sealed, she concluded that the problem was something else.

She started another sequence. [26] [ 67 ] She conducted a new AIACABA sequence that started with a system blank test that passed with a zero, an internal standard check that passed, a second system blank test that passed with a zero, a control test with a result of 100 mg, another system blank test that passed with a zero, the subject test with a result of 168 mg, and a system blank test with a result of zero. [ 68 ] Officer Caya stated that as a qualified technician, she was satisfied with the subject test, both with the blowing and the graph showing the BAC curve. [ 69 ] Officer Caya waited 15 minutes before conducting the second subject test. 4.

Internal standard error and second breath sample from Joshua Condo [ 70 ] She started another sequence [27] and obtained a result of zero for the system blank test and a fail for the internal standard check. [ 71 ] Officer Caya does not recall whether she did a purge, which is the procedure to follow according to the ENPQ manual.

She recalls that she tried to blow between the simulator and the device to remove any possible dust as she had been taught during her training. [ 72 ] Officer Caya started another sequence for a subject test. [28] [ 73 ] She initially obtained zero on a system blank test, then did an internal standard check that passed, another system blank test that displayed zero as a result, a control test that passed with a result of 1010 mg, a system blank test that displayed a result of zero, a subject test that displayed a result of 162 mg, and another system blank test that displayed zero as the result. [ 74 ] Officer Caya stated that she was satisfied with the subject test. [ 75 ] To terminate, because of a 2018 judgment rendered in Gatineau, she conducted another control test so that there was one at the beginning and one at the end of the test. [29] [ 76 ] She used the 3231 sequence, [30] which is a system blank test that passed with a zero, an internal standard check that passed, a control test that passed with a result of 99 mg, and a system blank test with a result of zero. [ 77 ] She then printed the qualified technician certificate indicating the results of Joshua Condo’s two subject tests. [31] [ 78 ] She then informed the police officer in charge of instruments about the two internal standard errors so that the device could be checked and repaired if necessary.

She does not recall how she informed the officer. [ 79 ] She did not fill out a defect report. [ 80 ] The chronology of the tests she conducted and their results are as follows:

- Sequence 200831-3224 (exhibit I-40-C) 4:39 a.m. changed alcohol standard solution - Sequence 200831-3225 (exhibit I-40-D) 4:42 a.m. system blank test 0 4:42 a.m. internal standard check - error - Sequence 200831-3226 (exhibit I-40-E) 4:46 a.m. system blank test 0 4:46 a.m. internal standard check - passed 4:47 a.m. control test 105 4:48 a.m. system blank test 0 - Sequence 200831-3227 (exhibit I-40-F) 4:53 a.m. system blank test 0 4:53 a.m. internal standard check - passed 4:54 a.m. system blank test 0 4:54 a.m. control test - standard out-of-range 106 - Sequence 200831-3228 (exhibit I-40-G) 4:56 a.m. system blank test 0 4:56 a.m. internal standard check - passed 4:57 a.m. system blank test 0 4:57 a.m. control test 100 - passed 4:59 a.m. system blank test 0 4:59 a.m. subject test 168 5:01 a.m. system blank test 0 - Sequence 200831-3229 (exhibit I-40-H) 5:18 a.m. system blank test 0 5:18 a.m. internal standard check - error - Sequence 200831-3230 (exhibit I-40-I) 5:19 a.m. system blank test 0 5:19 a.m. internal standard check - passed 5:20 a.m. system blank test 0 5:20 a.m. control test 101 - passed 5:21 a.m. system blank test 0

5:22 a.m. subject test 162 5:23 a.m. system blank test 0 - Sequence 200831-3231 (exhibit I-40-J) 5:27 a.m. system blank test 0 5:27 a.m. internal standard check - passed 5:27 a.m. control test 99 - passed 5:28 a.m. system blank test 0 [ 81 ] On cross-examination, Officer Caya said that there is no error log in the breathalyzer room and no way of knowing whether the previous technician obtained one or more internal standard errors or if there is an intermittent issue. She did not check the results of tests conducted before her. C. Expert evidence relevant to the constitutional challenge 1. Dr.

Andréas Stolz [ 82 ] Dr. Stolz holds a doctorate in physics and specializes in metrology. His field of activity is nuclear physics. [32] He is an associate professor with the National Superconducting Cyclotron Laboratory at Michigan State University, where he is Department Head for Operations. In this capacity, he develops and designs measuring instruments to study the properties of rare isotopes. [ 83 ] The Court declared Dr.

Stolz an expert in the areas of forensic breath analysis instruments based on infrared spectroscopy, physics, metrology, uncertainty measurement, traceability, quality assurance, and the correlation between these fields and the scientific reliability of results. [ 84 ] Dr. Stolz uses infrared spectroscopy in his research. Spectroscopy measures the absorption of infrared light by a substance to determine its quantity. This technique may be used to calculate the quantity of alcohol in a breath sample.

He explained the principle of infrared spectroscopy for a breathalyzer as follows: So, the principle that is being used in a breath testing instrument based on infrared spectroscopy is that you fill a sample chamber with the sample that you want to measure, and you send light, infrared light coming from an infrared lamp through the sample chamber, and this light then impinges on a detector that is sensitive to infrared light. And the amount of light that reaches the detector is being measured by that light detector.

The light detector transforms that into electric signal, one measures the conductions of the electric conductions of the light detector. This is then being amplified by electronic circuitry, and then it’s being digitised so that a computer can actually use the result to print out a ticket or a result in a breath or in an ethanol concentration. What’s measured is the amount of light that reaches the detector. [33] [ 85 ] According to Dr. Stolz, metrology and measurement science apply to all sciences. [ 86 ] Dr. Stolz explained the terms “calibration”, [34] verification, and adjustment. [35] [ 87 ] According to Dr.

Stolz, calibration is “the process of comparing the readings obtained by a measuring instrument to the values of a measurement standard with associated measurement uncertainties under controlled and specific conditions. Calibration needs to be performed for the complete range of values for which the instrument will be used for measurements”. [36] [ 88 ] He added: “(

a) calibration might be expressed as a calibration function. The simplest form of a calibration function is a linear function with a slope and offset”. [37] [ 89 ] According to Dr. Stolz, “(

a) calibration check or verification is a procedure to verify that a calibration of an instrument has not changed and is still valid at one single point. A single point calibration is not a valid concept in science”. [38] [ 90 ] He stated that verification, a less rigorous procedure than calibration, cannot replace or be substituted for calibration. [ 91 ] Dr. Stolz stated that the control test conducted during the breath analysis operational sequence in Quebec is a verification. [ 92 ] Dr.

Stolz is of the view that, to test the linearity of a measuring instrument, it is necessary to verify “the accuracy for more than two reference values, as two points can always be connected by a straight line (at least three points of reference are required)”. [39] [ 93 ] He believes that a measurement’s reliability is ordinarily obtained through a quality assurance program which will establish the traceability of a measurement’s result.

[ 94 ] In his view, there is a correlation between a quality assurance program and the scientific reliability of measurement results in that the program is meant to control all variables that might affect the quality and reliability of measurement results. [ 95 ] He read the quality assurance programs from various American states in which the maintenance records and computer memory are disclosed. [40] [ 96 ] Dr. Stolz stated that the 2012 position paper of the Alcohol Test Committee (ATC) is scientifically inaccurate.

He said that the elements it refers to are important but that there should be more information on the device’s calibration, its calibration interval, and the traceability of measurements that can be obtained from the device’s maintenance records and computer memory. [41] [ 97 ] Dr. Stolz explained the bracketing principle, i.e., when a test is out of range, earlier results should be invalidated back to the last completed control test. [ 98 ] In his view, one should go back in the tests until there is objective proof that the instrument was working properly and was reliable. [ 99 ] According to Dr. Stolz, Ms.

Abdourahman’s breath sample results are not reliable due to a standard out-of-range control test and an out-of-range internal standard check because the instrument should have been sent for repair and recalibration. The device’s computer memory, had it been disclosed, would have determined whether this was an intermittent problem. [42] [ 100 ] His conclusion is the same for Joshua Condo’s sample test results using the same instrument a few days later. [43] 2. Dr. Joseph C. Anderson [ 101 ] Dr Anderson is a scientist and holds a doctorate in chemical engineering. [44] [ 102 ] Dr.

Anderson owns Anderson Bioscience, a biotechnology consulting firm, and was an affiliate associate professor in biotechnology with the University of Washington in Seattle until 2012. [ 103 ] Since 1995, Dr. Anderson is interested in breath sample tests because he has been studying the movement of chemical elements, including ethanol and alcohol, in the body and in exhaled breath as well as their measurements. [ 104 ] The Court declared Dr.

Anderson an expert in the areas of biotechnology, breath sample tests, physiology, metrology, uncertainty measurement, and the correlation between these areas and the scientific reliability of test results. [ 105 ] Dr. Anderson stated that the blood-to-breath ratio used in Canada and the United States, which is 2100:1, means that one molecule of alcohol in the breath is equivalent to 2100 molecules of alcohol in the blood. In the United States, this ratio has been used since the 1960s or 1970s. [ 106 ] He agrees with Dr.

Mireault’s opinion that during the period of absorption, an average person will have a blood-to-breath ratio of 2100:1. [ 107 ] In Canada, because tests must be done as soon as possible, within 60 to 90 minutes of the last consumption, some people will have a blood-to-breath ratio lower than 2100, which means that the concentration of alcohol in the blood is overestimated. [ 108 ] He said that during the absorption period, the concentration in arterial blood is higher than in venous blood. In the post- absorption period, venous blood has a higher concentration of alcohol than arterial blood. [45] [ 109 ] Dr.

Anderson admitted that there is a strong correlation between the concentration of alcohol in the breath and the concentration in the blood. [ 110 ] He also admitted that the blood-to-breath ratio of 2100 underestimates the concentration of alcohol in the blood. [ 111 ] However, Dr. Anderson stated that a certain percentage of the population is disadvantaged when the blood-to-breath ratio of 2100 is used. 3. Janine Arvizu [ 112 ] Janine Arvizu is a chemist and quality auditor.

She lives in Albuquerque, New Mexico. [46] [ 113 ] Since the late 1990s, she has been an independent consultant auditing the test results of online forensic laboratories. [ 114 ] Ms. Arvizu was declared an expert by the Court in the areas of analytical chemistry, laboratory operation tests, metrology, quality assurance, data audits, and the correlation between these areas and the scientific reliability of test results. [ 115 ] According to Ms.

Arvizu, the elements of a quality assurance system must be mandatory and any deviation from the program must be documented and reviewed to ensure that it does not compromise the quality of the test results. [47] [ 116 ] Ms.

Arvizu said that an instrument should be calibrated with more than one solution of a known value. [48] [ 117 ] In her view, data must be traceable to compare the measurements to a threshold. [ 118 ] She explained that a control test (calibration check) is a test regularly done during the process, where a solution with a known concentration is tested to determine whether the device responds to this concentration, contrary to calibration, which is a rigorous process

involving several measurements taken at varying concentrations. [49] [ 119 ] Ms. Arvizu explained that a calibration interval corresponds to a period during which an instrument is presumed to function properly. [ 120 ] In her view, the device’s data is important because it determines what the calibration interval will be. [50] [ 121 ] According to Ms.

Arvizu, before an alcohol screening device is put into circulation, the device and all of its subsystems should be subject to an initial calibration check. [ 122 ] She stated that the absence of an error message does not mean that the device is functioning properly nor is it proof that it is functioning properly. [51] [ 123 ] Ms. Arvizu said that she needs access to the calibration data, control tests, and maintenance records, i.e., the device’s computer data for a certain period, to verify the scientific validity of the test results. [ 124 ] According to Ms.

Arvizu, a control test, during a sequence, that produces an out-of-range result invalidates all tests since the last passed control test because of the bracketing principle. [ 125 ] Ms. Arvizu considers that any analytical instrument should have a preventive maintenance program. [ 126 ] According to Ms. Arvizu, each instrument measurement is independent from another measurement. [52] [ 127 ] Ms. Arvizu concluded that the standard out-of-range control test obtained at 4:15 a.m. during Ms.

Abdourahman’s tests indicated that the instrument was out of range, and she inferred that the instrument could have been out of range since the last passed control test at 3:53 a.m. In her view, the subject test result at 3:56 a.m. is not scientifically reliable and is invalid. The instrument should have been removed and sent for verification because it had intermittent errors. [53] [ 128 ] In addition, with respect to the internal standard error received at 4:24 a.m., three minutes after Ms. Abdourahman’s second subject test, Ms.

Arvizu considers the subject test result at 4:21 a.m. invalid and scientifically unreliable. The internal standard error showed that the instrument was malfunctioning. [54] [ 129 ] Ms. Arvizu concluded similarly about the results obtained with the same instrument for Joshua Condo, that the subject test results are invalid and not scientifically reliable given the internal standard error and control test that was also out of range. [55] 4. Denis Hubert [ 130 ] Denis Hubert is a highway safety specialist with the ENPQ.

He was a Sûreté du Québec officer from 1979 to 2007 and has been a qualified breathalyzer technician since 1982. [ 131 ] The Court declared Mr. Hubert an expert on the functioning and use of the DataMaster DMT-C and its external components, including the simulator, and on the ENPQ training provided to qualified technicians on breathalyzers and simulators. [56] [ 132 ] Mr.

Hubert was a breathalyzer instructor at the ENPQ, including the DataMaster DMT-C, and an ENPQ coordinating instructor for DataMaster DMT-C breathalyzer technicians. [ 133 ] From March 2009 to November 2012, he was a member of the working committee to select breathalyzers, mandated by the Comité de concertation en matière de capacité de conduite affaiblie (CCCCA) and, from November 2012 to July 2017, represented the ENPQ on the Comité technique sur les appareils de mesure d’alcool . [ 134 ] Since July 2007, he has represented the ENPQ on various working committees, including the CCCCA, which falls under the responsibility of the Ministère de la sécurité publique (Ministère). [ 135 ] This committee is comprised of representatives from the Société d’assurance automobile du Québec, the ENPQ, the Laboratoire des sciences judiciaires et de médecine légale (LSJML), the Director of Criminal and Penal Prosecutions, the Association des procureurs de la défense du Québec, the Québec and Montreal police departments, and the Ministère de la justice. [ 136 ] He was a member of the working group that selected the DataMaster DMT-C. [ 137 ] He also completed a two-day training in 2010 given by engineer Dave Radmonski, who represents the National Patent Analytical System Inc. (NPAS), the U.S. manufacturer of the DataMaster DMT-C. [ 138 ] From November 2012 to July 2017, he updated documents related to the DataMaster DMT-C and worked on developing the course to become a DataMaster DMT-C qualified technician, a course that was launched in September 2010. [ 139 ] The course to become a qualified technician is given over five days, concerns only the DataMaster DMT-C (since 2018), and cover the following areas: - the instrument’s internal functioning; -

interpretation of the results; - the forms; - testimony in Court.

[ 140 ] The subjects covered are theory (20%) and practice (80%). [ 141 ] Mr. Hubert explained that in the beginning, René Lefrançois of the EPNQ was responsible for the course manual, which included five documents: one on the DataMaster DMT-C, one on the DataMaster DMT-C use protocol, and three manuals related to the LSJML concerning the physiology and pharmacology of alcohol, the laws of physics, and the metric system. [ 142 ] In the fall of 2015, Mr.

Hubert was tasked with consolidating the five documents into a single document. [ 143 ] This is the document given to qualified technicians. [57] [ 144 ] Another manual concerns the simulator. [58] [ 145 ] Mr.

Hubert explained that the Ministère adopted a policy on designating qualified breathalyzer technicians. [59] Among other things, it stipulates that qualified technicians must requalify every five years by completing two days of training. [ 146 ] The qualified technician training is given only at the ENPQ by an ENPQ school instructor and an LSJML representative. [ 147 ] The ENPQ developed a skills maintenance tool on Moodle.

It is a reference tool that provides demonstration videos on various themes. [ 148 ] Every time the documents for the qualified technician training are updated, the update is uploaded to the Moodle platform that has been in place since 2008 or 2009. Qualified technicians have access to this platform and a notice to their attention is sent to the police departments. [60] [ 149 ] He explained the sequence of operations to take a breath sample, i.e., AIACABA (now AIAEABA, since 2019, the calibration test (

C) has been referred to as the test d’étalonnage in French (

E) in the Criminal Code ). [ 150 ] The first system blank test (

A) purges the instrument’s airflow system with the ambient air to ensure that there is no residual alcohol from a previous test. The result must be zero. If the test produces a measurement greater than 4 mg%, the message [ translation ] “blank error” is displayed. [ 151 ] For the other system blank tests, the [ translation ] “blank error” message is displayed if the test produces a measurement greater than 8 mg%. [ 152 ] The internal test (

I) verifies the device’s internal standard. The instrument electronically checks the calibration of its quartz internal standard. If, during the check, the value is not within 4%, the [ translation ] “internal standard error” message is displayed. [ 153 ] The system calibration check (E) (commonly called control test by certain witnesses) checks that the instrument is functioning properly using an alcohol standard solution of 100 mg/100 mL. An [ translation ] “out-of-range calibration check” message is displayed when the result of the system calibration check is not within 10 mg% of the target value. [ 154 ] Mr.

Hubert explained the procedure to obtain a proper breath sample. There are two minimum requirements: a minimum air flow of three litres per minute and a minimum air volume of 1.5 litres. [61] A graph shows the data on the air flow and volume. Qualified technicians must obtain a complete exhalation to collect a sample of deep lung breath. [ 155 ] Mr. Hubert explained what qualified technicians are taught when an [ translation ] “internal standard error” message is displayed.

The cause may be the presence of a foreign body on the quartz and since 2015, qualified technicians have been taught to do a purge and, if the problem persists, to send the instrument for verification. [62] [ 156 ] The procedure used to be to send the instrument to an authorized centre for verification. The ENPQ contacted the instrument’s manufacturer to find out whether the instrument could be purged before it was sent, which was authorized by NPAS. [63] [ 157 ] Mr. Hubert explained what qualified technicians are taught when a control test is out of range.

First, the technician must check the simulator by doing a leak test, then verify the quality of the alcohol standard solution and change it, if necessary, then do another sequence and, if the problem persists, the instrument must be sent for verification. [ 158 ] According to Mr. Hubert, the manufacturer does not recommend periodic maintenance of the instrument. [64] [ 159 ] Mr. Hubert also said that the manufacturer does not recommend periodically calibrating the instrument. [ 160 ] Since 2015, the simulator has had to be serviced annually. [ 161 ] Mr.

Hubert is familiar with the instruments approved prior to the DataMaster DMT-C and explained that, unlike those devices, the DataMaster requires little handling because everything is automated. [ 162 ] He stated that before the course manual is revised, the ENPQ obtains the manufacturer’s approval through François Goupil. [65] [ 163 ] Mr. Hubert admitted that he cannot attest to the reliability of Ms. Abdourahman’s or Mr. Condo’s tests, only to their validity. [ 164 ] According to Mr. Hubert, the two sequences of operation for Ms. Abdourahman were complete and the results corroborated each other. [66]

[ 165 ] Mr. Hubert stated that once a sequence has been completed with all the expected results, the results are valid. 5. François Goupil [ 166 ] Mr. Goupil has been the president of François Goupil Développement de Marché Inc. (FGDM) since 2009. [ 167 ] Mr. Goupil is the exclusive distributor of the DataMaster DMT-C and was trained by the manufacturer NPAS on repairs and maintenance. [ 168 ] The Court declared Mr.

Goupil an expert on the functioning and use of the DataMaster DMT-C, its external components including the simulator, and on the repair and maintenance of DataMaster DMT-Cs and their impact on the reliability of the results. [67] [ 169 ] In 2009, he was approached by NPAS to make a presentation in French to the ENPQ and the selection committee on the DataMaster DMT, one of three instruments being presented to the committee, which was to chose one of them for the province of Quebec. [ 170 ] At that time, he was accompanied by NPAS vice-president Dave Radomski and by the sales director. [ 171 ] Following the presentation, the committee selected the DataMaster DMT-C (the generic version is called the DataMaster DMT, the DataMaster DMT-C has certain modifications required for approval in Canada). [ 172 ] At the request of NPAS, he then became the instrument’s exclusive distributor.

There are currently 295 DataMaster DMT-Cs in circulation. [ 173 ] In 2010, Mr. Goupil completed a four-day training given by Mr. Radomski at the NPAS offices in Ohio, in the United States, on the DataMaster DMT-C’s functioning and repairs. [68] [ 174 ] Since then, Mr.

Goupil has been the intermediary between NPAS and the ENPQ. [ 175 ] A technical committee was then created by the Ministère, of which he is not a member, to decide what modifications to make to the instrument if any and to determine the sequence of operations. [ 176 ] In 2016, he completed four days of training on DataMaster maintenance given by engineers from Intoximeters, which now distributes the DataMaster DMT-C instead of NPAS. [ 177 ] Mr.

Goupil completed another training given by Dave Radomski at the ENPQ. [ 178 ] Until 2016, he was the only person authorized to maintain and repair DataMaster DMT-Cs. [ 179 ] Since 2016, seven other technicians have been trained and they maintain the instruments for law enforcement. However, Mr. Goupil remains responsible for specific repairs. [ 180 ] Mr.

Goupil was also trained in 2016 by Guth Laboratories on the simulators [69] and repairs them. [70] [ 181 ] Every DataMaster instrument received from the manufacturer comes with its tubes, keyboard (Canadian standards), and the calibration certificate issued by the manufacturer. [71] [ 182 ] When Mr. Goupil receives an instrument, he examines it, conducts a control test and a diagnostic test on the reaction of the radio frequency, checks the volumetric sensor with a syringe, and fills out an inspection form. [72] [ 183 ] Mr.

Goupil described the first system blank test of a sequence, i.e., a 30-second purge. [ 184 ] The first system blank test purges the instrument’s airflow system with ambient air to ensure that there is no residual alcohol from a previous test. [ 185 ] Each filter in the optical path is then reset to zero. [ 186 ] If the test produces a measurement greater than 4 mg%, a [ translation ] “blank error” diagnostic message is displayed.

If not, “zero” is displayed, which means that the instrument is free of any contaminant and can continue its sequence of operations. [ 187 ] He described the other system blank tests in the sequence of operations the same way by stating that the [ translation ] “blank error” diagnostic message is displayed if there is a measurement greater than 8 mg%. [ 188 ] Mr. Goupil described the calibration operation (control test) he learned from Mr.

Radomski: to check using the simulator with a certified alcohol standard of 100 mg%. [ 189 ] He explained that the expected result of this calibration check is within 10 mg% of 100 mg%. [73] [ 190 ] This control test or calibration check verifies whether the instrument is functioning properly. [ 191 ] Mr. Goupil showed how the graph demonstrates the breath during a subject test because there is a curve for the breath and one for the blood-alcohol concentration. [74] [ 192 ] He explained that the internal standard check verifies the instrument’s internal standard by electronically checking the

calibration of its quartz internal standard. [ 193 ] Mr. Goupil explained that during this internal standard check, the instrument compares its internal standard with the value recorded during the instrument’s calibration. If this value is within 4%, the internal standard check passes. If not, an [ translation ] “internal standard error” diagnostic message is displayed. [ 194 ] According to Mr. Goupil, an internal standard error is often caused by a foreign body, such as dust. [ 195 ] Mr. Goupil explained that the instrument can detect interfering substances other than alcohol, at the ATC’s request.

It is then programmed this way during the subject test. Anything up to 10 mg will be subtracted by the instrument. If there is more than 10 mg, the message [ translation ] “interference detected” will be displayed and the programmed sequence will stop and must be restarted. [ 196 ] Mr. Goupil did a test with a DataMaster DMT-C and acetone, which he introduced drop by drop into the simulator. The instrument indeed detected the substance when he introduced 10.5 mg of acetone. [75] [ 197 ] He said that the instrument self-diagnoses and displays an error message if there is an anomaly.

In addition to the sequence under review, the instrument checks itself and all of its internal components. [76] [ 198 ] In his experience, there is no problem for which the instrument does not display an error message. [ 199 ] According to Mr. Goupil, the instrument functions in an environment and when there is an error message, the source of the problem is often something other than the DataMaster DMT-C. [ 200 ] Mr. Goupil said that the manufacturer does not recommend annual maintenance for the instrument given its array of diagnostic messages. [77] [ 201 ] Mr.

Goupil was present when qualified technician Ayotte testified. [ 202 ] He explained the sequences in Ms. Abdourahman’s case. [ 203 ] Mr. Goupil said that the sequence was completed for the first subject test. [ 204 ] In the second subject test, at sequence 3221, the full sequence was completed and was consistent with the first subject test. [ 205 ] In his opinion, the second subject test is reliable. [ 206 ] He then discussed Joshua Condo’s tests. [ 207 ] Mr.

Goupil noted that the control test for sequence 3227, which was out of range at 106, would be acceptable since Bill C-46’s enactment. [ 208 ] In his view, the first subject test is not problematic: the entire sequence was completed without any anomaly. [ 209 ] When viewing the graph of Mr. Condo’s second test, Mr. Goupil saw a bump in the curve between the second and third second that is about 5 to 6 mg%, which in fact suggests a foreign body entered the optical path. [78] [ 210 ] He considers the result of Mr. Condo’s second test reliable.

He said that the instrument should have been removed but performed well regardless. [79] 6. Pascal Mireault [ 211 ] Mr. Mireault is the director of toxicology at the LSJML. During his studies, he completed a master’s degree in analytical chemistry and his thesis focussed on mass spectrometry, open-path and closed-path instruments. [ 212 ] Mr. Mireault was a member of the professional order of chemists from 1996 to 2016 and is also a technical auditor. [ 213 ] He was a forensic toxicologist from 1996 to 2008 and, in 2008, became director of the legal

section of the LSJML. Since 2019, he has been its director of toxicology. [ 214 ] The Court declared him an expert in the areas of analytical chemistry, forensic toxicology, quality assurance, and the development of forensic methods and instruments. [80] [ 215 ] In February 2020, Mr.

Mireault trained as a qualified technician at the ENPQ. [ 216 ] He also participated in two studies on the DataMaster’s performance. [ 217 ] The DataMaster DMT-C is a closed-path infrared spectrometer (as opposed to an open-path instrument), which means that it is dedicated to a single application, which is to determine alcohol in the breath using spectrophotometry as an analytical method. [81] [ 218 ] Spectrophotometry uses electromagnetic wavelengths to quantify substances. [82] [ 219 ] Mr.

Mireault developed quality assurance methods at the LSJML, which holds ISO/IEC 17025 accreditation. [ 220 ] He is one of the founders of the Scientific Working Group for Forensic Toxicology (SWGTOX), which groups the other Canadian forensic laboratories and where members discuss subjects such as best practices and the calculation of uncertainty with the aim

of standardizing practices. [ 221 ] The LSJML has two DataMaster DMT-Cs as well as 10 simulators and devices that use spectrometry technology, including a visible spectrometer, which has the same principles of use as the infrared ones. [ 222 ] Mr.

Mireault sits on the CCCCA, where he represents the LSJML. [ 223 ] This joint action committee has two operating subcommittees: the technical committee on impairment due to alcohol and the technical committee on impairment due to drugs. [ 224 ] The CCCCA participated in selecting the DataMaster DMT-C and in late 2009, the CCCCA recommended the DataMaster DMT-C for Quebec after assessing three different instruments. [ 225 ] Mr.

Mireault explained the instrument approval procedure in Canada prescribed by the ATC and described in “Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee”. [83] [ 226 ] The LSJML was involving in drafting the ENPQ manual. When the DataMaster DMT-C was approved, NPAS engineer Dave Radomski came to Quebec to provide training. Two to three LSJML representatives attended to participate in drafting the ENPQ course manual. [ 227 ] The LSJML also provides its opinion on changes to the course manual. [ 228 ] According to Mr.

Mireault, for over 50 years, breath has been the biospecimen most used to determine the blood-alcohol concentration of drivers because there is an obvious correlation between alcohol in the blood and in the breath. [84] [ 229 ] Blood alcohol is transferred into the breath through the pulmonary alveoli, which is where gases are exchanged in the lungs. [ 230 ] Mr.

Mireault explained the three phases of the BAC curve, i.e., absorption, peak, and elimination. [ 231 ] In Canada, as in several countries (the United States and several European countries), instruments use a blood-to-breath ratio or BBR of 2100:1, which means that 2100 times the volume of blood to have the same blood-alcohol concentration in the breath. [85] [ 232 ] According to Mr.

Mireault, certain studies have shown that the correlation between BAC and alcohol in the breath is approximately 0.9, which means that the BAC in the breath is underestimated by approximately 10% when a ratio of 2100:1 is used. [86] [ 233 ] Some studies claim that the BBR is approximately 2300 to 2400:1 during the peak and elimination phases and certain ratios below 2100:1 have been observed during the absorption phase. [ 234 ] Mr.

Mireault agrees with the statement that there is a difference in the BBR in the absorption and post-absorption phases. [ 235 ] In the absorption phase (60 minutes give or take 30 minutes), there is a high chance that a person’s BBR will be below 2100 and in these cases, the breath test results are higher than the blood tests when they are done at the exact same time. [ 236 ] In the post-absorption phase, the average BBR is between 2300 and 2400. [ 237 ] Mr.

Mireault stated that determining the level of alcohol in the breath is a valid scientific method in forensics and that the distribution ratio works in favour of the accused during breath tests. [87] [ 238 ] Mr. Mireault stated that the DataMaster DMT-C manufacturer guarantees a linearity of 0 to 600 mg per 100 mL with a ratio of 2100:1. According to Mr. Mireault, the DataMaster DMT-C’s linear detection is not limited to these concentrations because of the Beer- Lambert law. [88] [ 239 ] Mr.

Mireault explained that the control test (like the internal standard check) verifies the instrument’s calibration, its [ translation ] “functionality”, [89] so that [ translation ] “we define the instrument’s response according to a known reference standard”. [90] [ 240 ] Mr. Mireault remarked that the internal standard checks all the DataMaster DMT-C components (electronic, analytical, software). [91] [ 241 ] According to Mr. Mireault, it must be fit for purpose and one cannot stop using any instrument that produces standard out of range test results.

The results of tests conducted at two different times cannot be questioned because of an internal standard problem due to a foreign body or a simulator that is not perfectly sealed. [ 242 ] Mr. Mireault said that an internal standard error message on a DataMaster DMT-C could be due to various reasons, including a calibration issue, electronic problem, dust, or an interfering substance. [92] [ 243 ] Mr. Mireault concluded that Ms. Abdourahman’s and Mr. Condo’s breath test results are reliable. [93] III. ISSUES [ 244 ] The applicant and the Attorney General raise the following issues: A. Does s. 320.31(1) Cr.

C . violate the presumption of innocence guaranteed by s. 11(

d) of the Charter ? B. Does s. 320.31(1) Cr. C. infringe the right to make full answer and defence guaranteed by s. 7 of the Charter ?

C. Do ss. 254(3)(a)(

i) and 320.28(1)(a)(

i) Cr. C. infringe the right to be secure against unreasonable searches guaranteed by s. 8 of the Charter ? D. In the affirmative, are ss. 320.31(1), 320.28(1)(a)(i), and 254(3)(a)(

i) Cr. C. justified under s. 1 of the Charter ? IV. ANALYSIS A. Does s. 320.31(1) Cr. C . violate the presumption of innocence guaranteed by s. 11(

d) of the Charter ? [ 245 ]

Section 11(

d) of the Charter reads: 11. Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [ 246 ] This provision is meant to protect an innocent person so that only those who are guilty are convicted by the criminal justice system. [ 247 ]

Section 11(

d) protects innocent individuals two ways. [ 248 ] First, s. 11(

d) guarantees any person charged with an offence the right to be presumed innocent until the State has proved his or her guilt beyond a reasonable doubt. [ 249 ] Second, s. 11(

d) guarantees a fair trial. [ 250 ] The presumption of innocence is composed of two essential elements: the accused must be proven guilty beyond a reasonable doubt and the State bears the burden of proof. [94] [ 251 ] The applicant submits that s. 320.31(1) Cr. C. creates a substantive rule of law that arises once the prosecution proves four established conditions in which case the judge must convict. [ 252 ] According to the applicant, s. 320.31(1) Cr. C. violates s. 11(

d) of the Charter because it removes all discretion from the trial judge and compels the judge to convict an accused even if there is a reasonable doubt about the person’s blood-alcohol concentration. [95] [ 253 ] The applicant submits that no reliable evidence, even presented by an expert, can reverse the prescriptions in s. 320.31(1) Cr. C. , even where it is unequivocally demonstrated that the instrument’s results are false or unreliable. [96] [ 254 ] The applicant submits that s. 320.31(1) Cr. C. offers no possibility of evidence to the contrary and that consequently, s. 320.31(1) Cr. C. creates an irrefutable presumption. [ 255 ]

Section 320.31(1) Cr. C . states: 320.31

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if (

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; (

b) there was an interval of at least 15 minutes between the times when the samples were taken; and; (

c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood. [ 256 ] To determine the constitutionality of s. 320.31(1) Cr. C. enacted by Parliament in 2019, it is necessary to review of the legislative history and case law leading to its enactment. 1. Legislative history and case law • Section 258(1)(c): a legislative restriction of the Carter defence [ 257 ] In 2008, Parliament enacted Bill C-2, Tackling Violent Crime Act , which resulted in significant changes in trials for driving with a blood alcohol concentration over the legal limit. [ 258 ] Among other things, s. 258(1)(

c) stated:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), ... (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and , (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed ; [ 259 ] Thus, the Carter defence (testimony by an accused about his or her alcohol consumption and of an expert on its implications) was no longer sufficient to cast doubt on the instruments’ results. [ 260 ] Under this scheme, to challenge the reliability of the instrument’s results, the accused had to raise a doubt that: - the instrument was functioning or operated properly; - the result of the analysis indicating a blood-alcohol concentration above the legal limit was due to the instrument’s malfunctioning or being operated improperly; - the accused’s blood-alcohol concentration at the time of the offence did not exceed the legal limit. [ 261 ] Therefore, the new provisions requiring evidence that casts doubt on the reliability of the results relate directly to deficiencies in the instrument’s maintenance or analytical process. [ 262 ] As revealed by Cyr-Langlois , [97] Parliament had two purposes: [3] … This requirement has two purposes.

First, it aims to ensure continued scientific recognition of breathalyzer test results, and second, it promotes the proper functioning and proper operation of instruments in order to prevent the reliability of the results from being compromised ( St-Onge Lamoureux , at paras. 33-36 ) . • St-Onge Lamoureux : constitutional preservation of the defence of malfunction or improper operation [ 263 ] In St-Onge Lamoureux, [98] the Supreme Court upheld the validity of the impugned provision but declared the last two requirements stated above in paragraph 260 unconstitutional. [ 264 ] The Supreme Court decided that Parliament was justified in requiring that evidence to the contrary adduced against the test results focus on the proper functioning or operation of the instrument. [ 265 ] The Supreme Court concluded that the presumption in s. 258(1)(

c) Cr. C . operated differently than the other traditional presumptions, including those considered in Oakes and Downey : [23] The statutory presumptions established in s. 258(1)(

c) Cr. C. operate differently than the ones at issue in Oakes and Downey . Section 258(1) (

c) does not exempt the prosecution from proving that the blood alcohol level of the accused exceeded the legal limit, which is an essential element of the offence. However, in proving this essential element, the prosecution can rely on the test results without having to prove that they are valid.

In sum, although the prosecution is not exempted from proving an essential element of the offence, the accused must nevertheless raise a doubt about a fact that the prosecution has not established in accordance with the rules of criminal evidence . [ 266 ] It should be noted that the judges dissenting in part, but concurring on this point, adopted this notion about the presumption. [99] [ 267 ] St-Onge Lamoureux teaches that the former s. 258(1)(

c) Cr. C. violates the presumption of innocence because the trier of fact could entertain a reasonable doubt about the validity of the test results where reliability has not been proved but must nonetheless convict. [100] Deschamps J. on behalf of the majority explained: [27] However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative

mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant. The trier of fact could therefore entertain a reasonable doubt about the validity 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 a judge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1) ( c ). In view of the mechanism for applying 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 the Charter . [ 268 ] Thus, in this version, the prosecution did not have to prove the conditions set out in s. 258(1)(c)(

i) to (iv) Cr. C. to benefit from the presumptions. [ 269 ] Given the evidence made and the wording of the provision, the Supreme Court noted that there was still a real risk that the instrument could malfunction or be used improperly. [101] [ 270 ] Deschamps J. added: [28] I wish to stress, however, that it is not because the test results could differ from the blood alcohol level of the accused at the time of the alleged offence that s. 258(1)(

c) infringes the right to be presumed innocent.

Rather, the infringement lies in the fact that, as Parliament recognized, the instruments can malfunction or be operated improperly, and therefore that the trier of fact could have a reasonable doubt about the guilt of the accused where the only evidence before him or her consists of the test results . [ 271 ] It must be concluded that the violation of the presumption of innocence discussed in St-Onge Lamoureux arises from the fact that the instrument could have malfunctioned or been used improperly and the judge could have had a reasonable doubt on the accused’s guilt when the evidence before the judge was comprised solely of the test results because the prosecution was exempted from proving the validity of the test results beyond a reasonable doubt. •

Section 320.31(1): a legislative response to St-Onge Lamoureux [ 272 ] Contrary to what the Supreme Court noted in St-Onge Lamoureux , however, in s. 320.31(1) Cr. C. Parliament codified the scientific elements which guarantee the reliability of test results. [ 273 ] In a backgrounder, the Department of Justice Canada explained the legislative amendment as follows: [102] There are several changes in the provisions dealing with proof of BAC but the underlying principles remain the same. The main difference is that the procedures that must be followed to ensure an accurate BAC reading are listed.

If those procedures are followed, and the Crown can prove this beyond a reasonable doubt, then BAC is conclusively proven. As noted in the statement of principles, Parliament has confidence in the accuracy and reliability of instruments that are approved by the Attorney General of Canada after being evaluated and recommended by the ATC. AIs perform internal checks and are programmed so that they will not activate if there is a problem that could affect the result.

For example, the results of a system calibration check used to determine whether or not the AI is properly calibrated must be within set parameters or the AI will not operate. Furthermore, modern AIs are digital, eliminating the possibility of human error in reading or transcribing the results. They provide a printout showing the results of the system blank tests, the system calibration checks and the subject tests, such that there is no possibility of an AI malfunctioning or being used improperly in a way that would not be evident on the printed test record.

Subsection 320.31(1) makes the results of a breath sample analysis by an AI conclusive proof of the BAC at the time of testing if the prosecution can prove the following beyond a reasonable doubt: 1. There were two subject tests, 15 minutes apart ; 2. The two subject tests were within 20 mg/100 mL of one another ; 3. A system blank test was performed before each subject test, the results of which were not more than 10 mg/100 mL; and, 4. A system calibration check was performed before each subject test using a certified alcohol standard and the results were within 10% of the target value.

These are the operational procedures recommended by the ATC that, if followed, ensure that the breath test of a person has produced accurate results. If the legislated conditions are proven, BAC at the time of testing is conclusively proven. [ 274 ] The same is true for the parliamentary debates surrounding the legislative amendment. [103] [ 275 ] Recently, the Ontario Court of Justice concluded to this effect: [18] The potential argument identified in Chavez that 100 mgs might be a national standard may not be factually true.

An approved instrument is certain to be in working order if it passes all of the diagnostic tests and returns a correct reading on each calibration test against the known external standard within the identified level of tolerance. The test results are certain to be correct, cannot be in error, if the approved instrument passed those internal diagnostic checks on each test sequence and passed the calibration test before each subject breath test. Any instrument can fail, but no failed instrument can pass that strict test protocol.

That test protocol has been part of the software of every approved instrument since the 1990’s. The essential procedures have now been incorporated into the Criminal Code s 320.31(1) in response to R v St-Onge Lamoureux 2012 SCC 57 . [104]

[ 276 ] Similarly, had s. 258(1)(

c) Cr. C . provided that the prosecution was bound to prove the validity of the test results, this provision would not have violated the presumption of innocence. [ 277 ] It appears that by enacting s. 320.31(1) Cr.

C. , Parliament was responding directly to the Supreme Court’s concern: the prosecution must prove that the test results are valid beyond a reasonable doubt by establishing the requisite conditions, which was not its burden at the time of St-Onge Lamoureux . [ 278 ] Before considering the applicant’s arguments, it is useful to briefly explain how the DataMaster DMT-C, the approved instrument in Quebec, works. 2.

How the DataMaster DMT-C works [ 279 ] Unlike the majority of spectrophotometers, which are open-path, the DataMaster DMT-C is a closed-path infrared spectrophotometer, meaning that it is dedicated to a single application, being to determine the alcohol in the breath using spectrophotometry as an analytical method. [105] [ 280 ] Spectrophotometry is the use of electromagnetic wavelengths to quantify substances. [106] [ 281 ] The DataMaster DMT-C’s analytical principle is infrared spectrometry based on the fact that all organic substances absorb infrared energy at predefined wavelengths and absorption intensities.

Each molecule absorbs infrared energy in a unique and individual manner. [107] [ 282 ] The DataMaster DMT-C uses infrared light and three specific filters to detect the ethyl alcohol molecule and determine the percentage of alcohol in a breath sample. [ 283 ] The DataMaster DMT-C takes measurements at three wavelengths of 3.44 µ, 3.37 µ and 3.50 µ.

A reading of the three wavelengths can detect and quantify the alcohol and also identify the presence of other volatile substances such as acetone. [108] [ 284 ] The instrument determines the concentration of alcohol in the air sample by quantifying the decreased intensity of the infrared light in the sampling chamber. If the sample contains alcohol, the infrared radiation is absorbed by the molecules at three wavelengths (three filters), thereby causing a decrease in the light intensity captured by the detector.

When 100% of the infrared light is captured by the detector, it means that no infrared energy has been absorbed and there is no alcohol.

Consequently, the more the infrared light is absorbed, the higher the rate of alcohol. [109] [ 285 ] The DataMaster DMT-C’s analytical principle is based on the Beer-Lambert law, which establishes a linear relationship between absorption and concentration. [110] [ 286 ] The DataMaster DMT-C is fully automated and computerized. [111] [ 287 ] Once the instrument is in operation, it takes a certain amount of time before the DataMaster DMT-C can be used, [112] then the tests are automatically conducted in a sequence of operations. [ 288 ] The steps are monitored so that the instrument displays the simulator temperature and the number and duration of tests conducted with an alcohol standard, which simplifies the task of the qualified technician who can concentrate on the instructions and the complete exhalation. [113] [ 289 ] The instrument has three systems: the optical system, the airflow system, and the electronic system. [114] [ 290 ] The optical system is comprised of the infrared source (Kanthal lamp), the sampling chamber (this chamber is used for the analysis during the various test sequences), and the infrared detection block (composed of the focusing lens, the standard wheel [the support for the instrument’s reference quartz], the measurement modulator, the filter wheel, and the infrared sensor). [115] [ 291 ] The electronic system electronically controls all the instruments’ functions constantly. [116] [ 292 ] When the electronic system detects an anomaly during the instrument’s operation, it displays a message and the sequence of operations is interrupted. [117] [ 293 ] The DataMaster DMT-C is composed of a single module and is equipped with a standard keyboard to enter the data that will be transferred onto a printout and the qualified technician certificate. 3.

Accuracy and reliability of results [ 294 ] The applicant submits that the approved instrument’s breath test results are neither reliable nor accurate. [ 295 ] More specifically, she argues that her October 2018 breath test results are neither reliable nor accurate. [ 296 ] The Court groups below the applicant’s different arguments that emerge from the testimony of her experts Stolz and Arvizu: (

a) The elements from the ATC operational procedures incorporated into s. 320.31(1) Cr. C . are scientifically inaccurate; (

b) The DataMaster DMT-C is not linear by definition; (

c) The DataMaster DMT-C was not initially certified; (

d) The DataMaster DMT-C must be calibrated at three points;

(

e) The principle of the calibration interval means that a standard out-of-range control test invalidates all tests since the last passed control test; (

f) The breath analysis program does not include a mandatory quality assurance program, which affects the scientific reliability of the test results; (

g) The instrument’s maintenance records can accommodate a quality assurance system; (

h) The instrument has a measurement uncertainty that must be calculated; (

i) The applicant’s test results are not reliable or accurate because of the standard out-of-range control tests and internal standard checks. [ 297 ] These arguments are refuted by the experts for the Attorney General. [ 298 ] Let us consider this. (

a) Elements of the ATC operational procedures [ 299 ] According to experts Stolz and Arvizu, the elements of the ATC operational procedures incorporated into s. 320.31(1) Cr. C . are scientifically inaccurate. [ 300 ] Dr. Stolz said the following in his report on the ATC’s position paper: [118] The 2012 Alcohol Test Committee Position Paper states system blank test, calibration check, instruments messages, and subject breath test results during the specific test are sufficient to assess accuracy and reliability of subject’s breath test result. The review of these items is certainly necessary to assess the reliability of the measurement,

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