Information 24148397 2004 SKPC 25 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT NORTH BATTLEFORD Between: HER MAJESTY THE QUEEN and DANIELLE RENE PARADIS Nicole Leinenweber for the Crown R. Peter Newton for the Accused February 6, 2004 Kaiser, P.C.J. JUDGMENT [1] The accused is charged with driving an automobile with a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood. At approximately 1:50 a.m. on the 1st day of January, 2003, while on patrol, Constables Prince and Rowell of the Unity RCMP observed Chevrolet Cavalier car eastbound on Highway Number 14, short distance east of Unity, Saskatchewan. Over distance of about one-half mile, the vehicle drifted back and forth between the centre line and the shoulder line, within its own lane. They stopped the vehicle, which pulled over in an appropriate manner. The officers found the accused to be the driver. Cst. Prince noted an odour of liquor on the accused’s breath, that the accused’s eyes were “glossy”, and that her cheeks were “flushed”. None of the other usual signs of impairment were present. Her speech was coherent and she was polite and cooperative. [2] Cst. Prince made an approved screening device demand, and at 1:54 a.m. the accused provided sample into an Alcotest 7410 GLC. The result was an “F”. She testified that this meant that the accused had blood alcohol level of at least 100 milligrams. At 2:00 a.m., Cst. Prince made breath test demand with the usual accompanying warning and advice as to the right to counsel. The accused was transported back to the Unity detachment, where she was turned over to qualified technician. Cst. Rowell, who was not qualified technician, observed the accused blowing into something that she described as an “intoxilyzer”. [3] The Crown filed a certificate of analysis pursuant to section 258(1)(g) for the intended purpose of proving the accused’s blood alcohol level. It indicates that the samples were taken at 2:40 and 3:01, with results of 120 milligrams and 110 milligrams, respectively. The document consists of preprinted form and is made up of preprinted words and underlined blanks. There are total of alterations of preprinted material and one alteration of writing contained within one of the blanks. Of the five alterations of preprinted material, four are initialled. Each of these initialled changes consists of changing the expression of the year from 19 to 2003. The change that is not initialled is as follows. The original printed phrase was “That did receive each of the said samples directly into Breathalyzer® model an approved instrument as defined in subsection 254(1) of the Criminal Code (Canada)”. The word and symbol “Breathalyzer®” have line drawn through them and above same is written the word “Intoxilyzer”. There is no symbol with it. In the blank that follows is handwritten the expression “5000C”. The alteration of the handwritten portion concerns the time at which the second sample was taken. It appears to have originally been handwritten as “02:01". “3" has been written in overtop of the “2". Cst. Rowell testified that she saw the technician write the figure “3" in overtop of the “2". There is also an initialled change to the year in the Notice of Intention to produce Certificate. ISSUES AND ANALYSIS 1. Is it a requirement of subparagraph 258(1)(g)(i) that the approved instrument be identified by way of make and model? [4] The pertinent portion of the subject section reads as follows: 258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), (g) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), certificate of qualified technician stating (i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument, ......... is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; The legislation requires that the alcohol standard be identified in the certificate, but does not state that the approved instrument needs to be so identified. One might therefore conclude that Parliament did not intend that there should be requirement that the instrument be identified, provided that the qualified technician states in the certificate that an approved instrument was employed. If Parliament had intended the contrary to be the case, it would have specifically stated that the approved instrument needed to be identified, just as it did with respect to the alcohol standard. This seems to be the position taken by the Alberta Supreme Court, Appellate Division in R. v. Gregorwich, (1975), 1975 CanLII 1372 (AB CA), 27 C.C.C. (2d) 267, which case was followed in R. v. Gorman (1976), 1976 CanLII 1412 (NB CA), 32 C.C.C. (2d) 222 (N.B.C.A.). [5] The courts in Saskatchewan have not followed this line of reasoning, but have rather taken the approach set out in R. v. Foley (1975), 1975 CanLII 1445 (SK QB), 25 C.C.C. (2d) 514 (Sask. Q.B.). In that case Mr. Justice MacLeod wrote at page 517: In the certificate, “Borkenstein Breathalyzer” is modified by the words “an instrument approved for this purpose pursuant to section 237(6) of the Criminal code of Canada”. Do these words of modification render the certificate acceptable as proof. think not. The certificate may be used to prove facts, not law. The instrument or type of instrument used is matter of fact; whether such an instrument is an approved instrument is matter of law. If it were otherwise, no reference at all to the name of the instrument would be required, and the proof would be made by stating simply that “the said sample was received directly into an instrument approved for this purpose pursuant to section 237(6) of the Criminal Code of Canada”. By way of general observation, note that Parliament has the power to deem things to have been proven regardless of whether the question is one of fact or of law. [6] The Foley case was specifically not followed in R. v. Gilbert (1976), 1976 CanLII 1307 (ON CA), 31 C.C.C. (2d) 251 (Ont. C.A.). [7] In R. v. Wilkinson [1998] S.J. No. 913, (Sask. Q.B.), Mr. Justice Kreuger dealt with Foley on the basis that it was and is good law, but distinguished it. Matsalla, P.C.J. considered Foley in R. v. Claypool (S.S.), [2003] Sask.R. TBEd. OC.068, and took similar approach to that taken by Mr. Justice Kreuger. [8] While have some reservations as to the correctness of Foley, it is my view that am bound by it. Accordingly I must and do take the law to be that in order for a certificate of analysis under paragraph 258(1)(g) to constitute evidence as set out in that subsection, the make and model of the approved instrument has to be set out in the certificate or be proven by other evidence. 2. Has the alleged approved instrument been identified by make and model? [9] It is not possible to know who made the alteration consisting of the striking out of the word and symbol “Breathalyzer®” and the writing in of the word “Intoxilyzer”. Other alterations, being those as to year were clearly made by the qualified technician in that they bear his initials. While it is probably the case that the same person made the alteration that is not initialled, one cannot adequately be sure of this. “Probably” is rarely, if ever, adequate to meet the burden borne by the Crown in criminal trial. The use of certificate is shortcut afforded to the Crown. If it is to be employed, it must be employed correctly. Under the somewhat unusual circumstances of this case, I find that the approved instrument is not adequately identified as to make and model by means of the certificate. [10] note Cst. Rowell’s evidence that she saw the accused blow into the Intoxilyzer. Cst. Rowell is not qualified technician and accordingly her evidence cannot be given much if any weight when she describes an instrument that she is not qualified to use. Moreover, she did not state the model, and there are three different models of Intoxilyzer that are designated. There may well be other Intoxilyzer models that are not designated. Her evidence does not adequately advance the Crown’s case in this respect. Accordingly, other evidence does not sufficiently identify the approved instrument as to make and model. [11] It follows that the Crown cannot rely upon paragraph 258(1)(g) and accordingly there is no evidence of the accused’s blood alcohol level. [12] Considerable evidence and argument in this matter was directed to issues of evidence to the contrary as contemplated in R. v. Gibson (1992), 1992 CanLII 2750 (SK CA), 100 Sask.R. 88; 18 W.A.C. 88; 72 C.C.C.(3d) 28 (Sask.C.A.), R. v. Simonson [2001] S.J. No. 570 (Sask.Prov. Ct.), and R. v. Fox (2003), 2003 SKCA 79 (CanLII), 238 Sask.R. 271 (Sask.C.A.);. Given my finding with respect to the certificate it is unnecessary and inappropriate for me to comment upon those issues. [13] The charge is dismissed.
The accused was charged with driving a motor vehicle with a blood alcohol level exceeding .08. The Crown filed a certificate of analysis pursuant to s. 258(1)(g) of the Criminal Code for the purpose of proving the accused's blood alcohol level. The word and symbol 'Breathalyzer' had a line drawn through them and above the same was written 'Intoxilyzer'. There was no symbol with it. In the blank that followed was written '5000C'. This change was not initialed. The issue was whether s. 258(1)(g) of the Code requires that the approved instrument be identified by way of make and model. HELD: The charge was dismissed. The Court found the Crown could not rely on s. 258(1)(g) of the Code and there was no evidence of the accused's blood level. 1) The Court found that in order for a certificate of analysis under s. 258(1)(g) of the Code to constitute evidence as set out in that subsection, the make and model of the approved instrument has to be set out in the certificate or be proven by other evidence.  2) It was not possible to know who made the alteration. The use of a certificate is a shortcut afforded to the Crown. If it is to be employed, it must be employed correctly. In the circumstances, the approved instrument was not adequately identified as to make and model.