Docket: CACR2322 Her Majesty the Queen Appellant - v. -, 2014 SKCA 57

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 57 Date: 2014-05-09 Between: Docket: CACR2322 Her Majesty the Queen Appellant - and - Vernon J. Greenough Respondent Coram: Richards C.J.S., Klebuc and Ottenbreit JJ.A. Counsel: W. Dean Sinclair for the appellant Michael Owens for the respondent Appeal: From: 2013 SKQB 208 Heard: November 20, 2013 Disposition: Appeal allowed Written Reasons: May 9, 2014 By: The Honourable Chief Justice Richards

In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Ottenbreit Richards C.J.S. I. introduction [ 1 ] The respondent, Vernon Greenough, was suspected of driving a motor vehicle while under the influence of alcohol. He failed a roadside screening test and was taken to a police station for the purpose of providing breath samples for analysis. [ 2 ] The technician who took the samples misinterpreted a signal from the approved testing instrument and, as a result, did not follow the operating manual. More specifically, after the instrument registered an “INVALID SAMPLE” signal when Mr.

Greenough first provided a sample, the technician waited only 13 minutes, rather than the 20 minutes specified in the manual, before asking Mr. Greenough to try again. [ 3 ] Mr. Greenough ultimately provided two additional samples. The first indicated a blood alcohol content of 220 milligrams of alcohol per 100 millilitres of blood. The second indicated a content of 230 milligrams percent. [ 4 ] The Provincial Court trial judge, as is standard in cases of this kind, had to deal with the statutory presumptions of accuracy and identity found in s. 258(1) (

c) of the Criminal Code . She held that, notwithstanding the technician’s failure to follow the manual, the presumptions had not been displaced. She convicted Mr. Greenough of driving with “over .08”, contrary to s. 253(1) of the Criminal Code . [ 5 ] On appeal to the Court of Queen’s Bench, the

summary conviction appeal judge interpreted the Supreme Court of Canada’s intervening decision in R. v. St-Onge Lamoureux , 2012 SCC 57 , [2012] 3 S.C.R. 187 as meaning the introduction of evidence that the instrument had not been operated in accordance with the manual automatically led to a reasonable doubt about Mr. Greenough’s guilt. As a consequence, he allowed Mr. Greenough’s appeal and entered an acquittal. [ 6 ] The Crown appeals. It says the appeal judge misinterpreted R. v. St-Onge Lamoureux . [ 7 ] In my opinion, and as explained below, there must be a new trial in this matter. Both of the courts below based their decisions on the version of s. 258(1)(

c) of the Code which was enacted in July of 2008. However, given that the alleged offence took place in May of 2008, they should have used the earlier version of that provision. II. the facts [ 8 ] On May 8, 2008, at 2:55 a.m., Mr. Greenough failed to obey a stop sign in Saskatoon, Saskatchewan. Constable Ashley McLeod, a member of the Saskatoon Police Service, stopped Mr. Greenough’s car and observed signs that Mr. Greenough was impaired by alcohol. [ 9 ] Constable McLeod administered a roadside screening test. Mr. Greenough failed the test and Constable McLeod made a demand for breath samples. Mr.

Greenough was escorted to the police station, arriving there at 3:31 a.m. [ 10 ] Mr. Greenough then spoke to a lawyer. Next, Constable Jim Campbell, a qualified technician, tried to take a breath sample using the Intoxylizer 5000C, an approved instrument. This happened at 3:56 a.m. The Intoxylizer reported an “INVALID SAMPLE” reading. [ 11 ] At 4:09 a.m., Constable Campbell conducted another test. The Intoxylizer reported that Mr. Greenough’s blood alcohol level was 220 milligrams percent. A third sample was taken at 4:33 a.m.

The Intoxylizer indicated a blood alcohol level of 230 milligrams percent. [ 12 ] The “Resource Manual” for the Intoxylizer 5000C was filed as an exhibit at the trial.

Part C of the Manual is entitled “Mouth Alcohol Detection”. It indicates that, unlike the case with normal exhalation, the breath alcohol concentration of a person who has recently consumed alcohol will rise at a much steeper “slope” than usual and then drop quickly as the residual mouth alcohol content dissipates.

Part C goes on to say that, if a difference in the alcohol concentration at the end of a test is more than five milligrams percent lower than the highest result obtained during the test, then the message “INVALID SAMPLE” will show and a tone will sound. All of this is illustrated in the Manual by way of the following example: For example, if a subject had consumed alcohol just prior to providing a sample, the results of tests every 0.6 seconds may be 110, 130, 170, 165, 162, 158, 155, 154. The slope requirements have been met with there being a difference of only -1 between the last two results.

However, this would still result in an “INVALID SAMPLE” message when the final value (154) is compared to the highest value (170). … [ 13 ] The Manual indicates that, when an “INVALID SAMPLE” message is produced by the Intoxylizer, the subject must wait an additional 20 minutes before providing another sample: …When this [“INVALID SAMPLE”] occurs, the subject must wait a further 20 minutes before providing another sample, and this

would necessitate the taking of a third sample from the subject. [ 14 ] Constable Campbell testified that, during Mr. Greenough’s first attempt to provide a sample, he stopped blowing, started to inhale and then took his mouth off the tube before he should have. That was when the instrument returned the “INVALID SAMPLE” message.

Constable Campbell testified that he had thought the message was “deficient sample” and explained this was why he had waited only 13 minutes before administering the next test, rather than waiting the 20 minutes prescribed by the Manual. [ 15 ] Constable Campbell admitted his error but did not testify that the test taken at 4:09 a.m. was invalid or unreliable. When asked, he could not say if his error would have had any effect on the accuracy of the test results. III. the trial decision [ 16 ] Mr.

Greenough argued that the failure to wait 20 minutes after the “INVALID SAMPLE” message before administering the 4:09 a.m. test raised a reasonable doubt about the accuracy of that test. He took the position that the presumption of accuracy in s. 258(1) (

c) of the Criminal Code was not operative. [ 17 ] The trial judge did not accept this line of argument. In her view, the evidence that the Intoxylizer had not been operated in strict accordance with the Manual did not displace the statutory presumption that the results of the tests were conclusive proof of Mr. Greenough’s blood alcohol level at the time he had been driving.

She wrote as follows: 25 Although the evidence before me establishes that the recommended manner of operation of the Intoxilyzer requires that 20 minutes elapse after a reading of "invalid sample", there is no evidence that waiting only 13 minutes would render a subsequent test unreliable or inaccurate. The Intoxilyzer operator could not say what effect, if any, this failure would have had on the subsequent test results. Further, the two subsequent tests recorded on the Certificate of Analyses are within 20 mg% of each other as required to ensure accurate results and are supportive of the accuracy of the reading.

Further, the fail on the roadside screening device supports the proposition that the accused's blood alcohol level was in excess of 80 milligrams of alcohol in 100 millilitres of blood at the time of driving. Further, as indicated in D-2, the "mouth alcohol system is simply another safeguard". Based on the evidence before the Court, it would be mere speculation to conclude the results which were obtained were unreliable or inaccurate. 25 ( sic ) Parliament has clearly established the nature of the evidence required to rebut the accuracy of recorded breath test results.

In this instance, although the evidence is that the instrument was not operated in accordance with the operator's manual, there is no evidence that the manner in which it was operated created a result in excess of 80 mg of alcohol in 100 mL of blood when the accused's alcohol levels at the time of driving would not have in fact exceeded that level. The Court is therefore left with the statutory presumption that the results of the tests are conclusive proof of the accused's blood alcohol level of .22 both at the time of driving and at the time the tests were conducted. [ 18 ] In the end, the trial judge found Mr.

Greenough guilty of driving “over .08”. See: 2012 SKPC 72 . IV. the

summary conviction appeal decision [ 19 ] Mr. Greenough appealed to the Court of Queen’s Bench. The appeal judge noted that, after the trial decision, the Supreme Court had rendered its decision in R. v. St-Onge Lamoureux , supra . As indicated, the appeal judge found that the evidence concerning Constable McLeod’s failure to follow the Manual created reasonable doubt about the accuracy of the 4:09 a.m. sample.

He explained his reasoning as follows: [33] In St-Onge Lamoureux , the Supreme Court dealt with the issues surrounding malfunctioning or improperly operated instruments, in terms of the issue of evidence to the contrary. The accused must now show evidence that tends to establish that the reliability of the breath test results is in doubt due to malfunction or improper operation of the machine. If this is done, a reasonable doubt arises as to the accused's guilt because the Crown can no longer rely upon the accuracy of the test results.

The second and third requirements under s. 258(1) (c) (see above) were struck down as unconstitutional; the balance of the Criminal Code amendments were upheld. At paragraph 3, Deschamps J. said: [3] For the reasons that follow, I find that Parliament was justified in requiring that any evidence adduced to cast doubt on the test results be directed at the functioning or operation of the instrument.

However, where such evidence casts doubt on the reliability of the results, the imposition of additional conditions does not constitute a reasonable limit on the right to be presumed innocent. ... [34] Here, St-Onge Lamoureux does operate to assist the appellant. It was abundantly clear from all the evidence and from the Crown's admission that the breath test operator did not wait 20 minutes after receiving an invalid sample. It was clear that the operating manual for this machine, which told him how to properly operate it, instructed him to wait that long. He did not follow that manual.

There was evidence as to improper operation of the breath test machine vis-à-vis the second sample. As a result there was reasonable doubt with respect to the test samples, and the Crown could not rely upon the second test taken. Therefore, the Crown only had one test. The weight of the authorities is such that the Crown is neither entitled to the benefits of s. 258 when it can only present one valid test nor entitled to simply file and rely upon the certificate of analyses.

[20] The appeal judge went on to allow Mr. Greenough’s appeal and to enter an acquittal. See: 2013 SKQB 208. V. analysis [21] In their written and oral submissions, both the Crown and Mr. Greenough proceeded on the basis that the provision of the CriminalCode at the heart of this appeal was s. 258(1)(c), as it presently reads, but as interpreted and constitutionally pruned back by the SupremeCourt of Canada in R. v. St-Onge Lamoureux. However, as it turns out, this was not the proper footing for the appeal. Let me explain. [22] Section 258(1)(

c) of the Code establishes both a presumption of accuracy of the results of breath sample analyses and apresumption of identity according to which results are presumed to correspond to the blood alcohol content of the accused at the time ofthe alleged offence. Until 2008, s. 258(1)(

c) provided that these presumptions could be displaced by “evidence to the contrary”. It readas follows: 258.

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

section 253 or in any proceedings undersubsection 255(2) or (3), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (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, in the absence of evidence to the contrary, proof that the concentration of alcohol inthe blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are thesame, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrationsdetermined by the analyses; [emphasis added] [23] Section 258(1)(

c) was altered by the Tackling Violent Crime Act, S.C. 2008, c. 6. The relevant parts of the Act were aimed atovercoming the so-called “Carter defence” (see: R. v. Carter (1985), (ON CA), 19 C.C.C. (3d) 174 (Ont. C.A.) bylimiting the kinds of evidence which could displace the statutory presumptions. They came into force on July 2, 2008 and amended theportion of s. 258(1)(

c) which follows subparagraph (iv): 258.

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

section 253 or subsection 254(5) or in anyproceedings 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 … (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 thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things—that theapproved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in thedetermination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that theconcentration 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 whenthe offence was alleged to have been committed; [emphasis added] [24] In R. v.

St-Onge Lamoureux, the Supreme Court found that the amendments to s. 258(1)(

c) violated s. 11(

d) of the Charter andexcised the following words from the provision: “all of the following three things— …that the malfunction or improper operationresulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, andthat 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 timewhen the offence was alleged to have been committed”. [25] The offence at issue in this appeal is alleged to have taken place on May 8, 2008. In other words, it is alleged to have taken place

before s. 258(1)(

c) was amended. This is significant because, in R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272, the Supreme Court held that the Tackling Violent Crime Act amendments to s. 258(1)(

c) do not operate retrospectively. [ 26 ] All of this leaves us in the following position: (

a) the trial judge (who rendered her decision in advance of the rulings in both R. v. St-Onge Lamoureux and R. v. Dineley ) proceeded on the basis that she was to apply s. 258(1)(

c) as amended by the Tackling Violent Crime Act , and (

b) the appeal judge (who had the benefit of R. v. St-Onge Lamoureux but who was not provided with R. v. Dineley ) based his decision on s. 258(1)(

c) as amended by the Tackling Violent Crime Act and then constitutionally limited by R. v. St-Onge Lamoureux . As we now know in light of R. v. Dineley , both judges should have applied the version of s. 258(1)(

c) that was in place before the 2008 Tackling Violent Crime Act amendment. [ 27 ] When R. v. Dineley was drawn to the attention of the Crown and Mr. Greenough, the Crown maintained the position that its appeal should be allowed. However, it also submitted that, notwithstanding the Supreme Court’s position on the retrospectivity issue, Mr. Greenough’s conviction should be restored. In its view, “[t]he amendments [effected by the Tackling Violent Crime Act ] did not change the test for rebutting the presumption of accuracy and so, necessarily, did not compromise the defence approach to the case”.

The Crown contended that Mr. Greenough had failed at trial to overcome the presumptions created by s. 258(1)(

c) and the appeal judge had then erred by proceeding on the assumption that every deviation from the manual operates to displace those presumptions. [ 28 ] I do not accept the core idea in this line of argument. There is a material difference between the version of s. 258(1)(

c) in place before the 2008 amendment and the version post-2008 amendment, even as it was limited by R. v. St-Onge Lamoureux . The pre-2008 version allowed an accused person to attempt to displace the presumptions of accuracy and identity by introducing “evidence to the contrary”. There were no restrictions on the nature of such evidence. See: R. v. St-Onge Lamoureux at para. 37 . After the Tackling Violent Crime Act amendment and the decision in R. v.

St-Onge Lamoureux , these presumptions could only be displaced by evidence “tending to show…that the approved instrument was malfunctioning or was operated improperly”. Thus, in both the Provincial Court and on appeal to the Court of Queen’s Bench, Mr. Greenough’s defence options appeared to be, and were treated as being, narrower than was actually the case. [ 29 ] Moreover, the trial judge’s ultimate decision about Mr. Greenough’s blood alcohol level was deeply grounded in s. 258(1)(

c) as it stood post- Tackling Violent Crime Act but pre- R. v. St-Onge Lamoureux . This is apparent from the key paragraph in her decision explaining the conclusion that the Crown was entitled to rely on the statutory presumptions found in s. 258(1)(c): 25 ( sic ) Parliament has clearly established the nature of the evidence required to rebut the accuracy of recorded breath test results.

In this instance, although the evidence is that the instrument was not operated in accordance with the operator's manual, there is no evidence that the manner in which it was operated created a result in excess of 80 mg of alcohol in 100 mL of blood when the accused's alcohol levels at the time of driving would not have in fact exceeded that level .

The Court is therefore left with the statutory presumption that the results of the tests are conclusive proof of the accused's blood alcohol level of .22 both at the time of driving and at the time the tests were conducted. [emphasis added] [ 30 ] As a result, I am not prepared to accept that the misunderstandings in the courts below about s. 258(1)(

c) were non-consequential. In my view, those misunderstandings dictate that a new trial must be ordered. [ 31 ] This said, I also acknowledge the Crown’s related contention that, regardless of which version of s. 258(1)(

c) is engaged here, the trial judge’s decision should have been maintained on appeal because of her conclusions about the significance of the technician’s error. In this regard, the Crown points to this part of the trial judge’s decision: 25 Although the evidence before me establishes that the recommended manner of operation of the Intoxilyzer requires that 20 minutes elapse after a reading of "invalid sample", there is no evidence that waiting only 13 minutes would render a subsequent test unreliable or inaccurate.

The Intoxilyzer operator could not say what effect, if any, this failure would have had on the subsequent test results. Further, the two subsequent tests recorded on the Certificate of Analyses are within 20 mg% of each other as required to ensure accurate results and are supportive of the accuracy of the reading. Further, the fail on the roadside screening device supports the proposition that the accused's blood alcohol level was in excess of 80 milligrams of alcohol in 100 millilitres of blood at the time of driving. Further, as indicated in D-2, the "mouth alcohol system is simply another safeguard".

Based on the evidence before the Court, it would be mere speculation to conclude the results which were obtained were unreliable or inaccurate. [ 32 ] I have two problems with the Crown’s submission on this point. First, it seems the trial judge’s assessment of the technician’s error was, at least to some extent, influenced or coloured by the overall content of s. 258(1)(

c) as she understood it. More specifically, her reasoning appears to reflect a sense that Mr. Greenough was under an obligation to positively establish that, as per the Tackling Violent Crime Act amendment, the failure to wait 20 minutes after the “INVALID SAMPLE” signal caused the testing instrument to generate an inaccurate reading. [ 33 ] Second, and in any event, the trial judge based her conclusion, in part, on the results of the roadside screening test. However, as the Crown quite properly points out, such results cannot be used in this way. See: R. v. Fox , 2003 SKCA 79 , [2004] 7 W.W.R. 477 at para. 74 .

Therefore, even assuming that the trial judge’s examination of the significance of the failure to follow the manual in this case could be directly applicable to s. 258(1)(

c) as it read before the enactment of the Tackling Violent Crime Act , there is still a significant problem. The judge relied on an improper consideration when she assessed the technician’s error and the significance of that consideration to her bottom-line conclusion is not clear. This too points to the need for a new trial. VI. conclusion [ 34 ] I conclude that the Crown’s appeal must be allowed. The decision of the appeal judge is set aside and a new trial ordered.

DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of May, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Richards C.J.S.” for Klebuc J.A. (as per authorization) I concur “Ottenbreit J.A.” Ottenbreit J.A.