Is there a defence that breath test machine was not working?
The case of R. v. St-Onge Lamoureux  S.C.J. No. 57, 2012 S.C.C. 57 gives the answer. This case decided that the old “Carter” or “I only had 2 beers and my toxicologist says I should have been at 50mg and not over 80mg” defence was no longer good law. Going forward, defence lawyers will need to argue that the breath testing machine was not working and/or being operated properly. St-Onge Lamoureux and a few subsequent Ontario Court of Justice clarified what the test is to challenge blood alcohol and 08 readings. Not just any error will lead to a defence but significant ones will.
In 2008 the federal government enacted changes to the Criminal Code, dealing with the reliability of the instruments used for breath testing in those DUI cases, colloquially referred to as “over 80” (or “Carter”) cases, in which the accused had been charged with driving while having a blood alcohol level over the legal limit of 80 mg of alcohol in 100 ml of blood. In essence, the government legislated that the breath testing instruments were practically infallible.
For accused persons to raise a reasonable doubt about the accuracy of the blood alcohol level readings given by the instrument, they would be required to prove three things: that a malfunction with the instrument or an error in the manner in which it was operated had occurred; that the malfunction or the error caused the readings to indicate a blood alcohol content over the legal limit; and finally, that the accused was, in fact, under the legal limit when the alleged offence was committed. Showing that all three of these things occurred was virtually impossible which meant that the readings were to be accepted, even where there were possible problems with the instrument.
In St-Onge Lamoureux, the Supreme Court of Canada overruled these amendments in part, holding that their effect caused a violation of the accused’s rights under the Canadian Charter of Rights and Freedoms. The Charter is part of our constitution and any law that infringes a provision of the constitution, may be struck down by the courts. In this case, the Supreme Court decided that where there is a malfunction with the instrument or an error in the way in which it is operated that raises a reasonable doubt in the judge’s mind about the reliability of the instrument, that should be sufficient to acquit an accused. The court struck down the second and third of the three requirements as being too intrusive on the Charter rights of an accused.
Before this case, it was virtually impossible to raise a defence regarding the operation of the instrument. This revision of the law means that the question of problems with the instrument or the way in which it is operated, is important once again. Showing such a malfunction or error can be a key defence in “over 80” offences.
The first steps in determining whether malfunctions or errors occurred involves having a strong working knowledge of the instrument. This involves having familiarity with the operating manual and procedures involved in using the instrument. Where the tests are videotaped, a thorough review of the way the instrument was operated can become important. The sounds the instrument makes and the actions of the breath technician can provide key details to build a defence. Where video and audio recordings do not exist, a thorough examination of why they do not is required.
It is important for defence counsel to review all evidence available to assess if the instrument was properly operated. Often this analysis will also involve reviewing prior test records and downloaded data from the instrument. Past use of the instrument where proper procedure was not followed can provide a defence. It is important that your lawyer review this data and also have the knowledge to interpret it.
In the cases of the Peterborough 8, disclosure became a major issue in the case. The prosecution had tightened up resolutions for cases with low readings. The Centre for Forensic Sciences had provided a sworn affidavit relating to the Intoxilyzer 5000C indicating that where two readings below 100mg were obtained, the readings could not be relied upon to prove that an individual had over 80 mg of alcohol in 100 ml of blood beyond a reasonable doubt. When the Intoxilyzer 8000C came into use, similar inquiries were made. The CFS indicated that the 8000C was reliable even with readings in the 90s because it was an approved instrument. While it was pointed out that the 5000C had also been an approved instrument but not accurate to the required degree the CFS never provided an appropriate response.
As a result, our firm proceeded on an expedition to obtain evidence about the accuracy and reliability of the 8000C. We attempted to purchase one but the manufacturer adamantly refuses to sell to anyone other than law enforcement and limited educational institutions. This seems very odd in an open market by a private company that would stand to make even more money selling additional units at high markup.
We pursued downloaded data from the instruments in Peterborough County and obtained same through disclosure rulings from the local court. By analyzing this data we were able to identify an error which was recurrent. Having previously obtained the manual for the instrument and pointing out that this error was not remedied as it was supposed to be by the police we were able to resolve most of the matters by non-criminal offences.
While the Court would not order the production of an instrument to the defence for testing or the sale of one to a defence expert, it did apply St. Onge Lamoureux to say that the reason one need not be produced is because the requirement on the defence is merely to point to a possible error in the instrument’s operation which was possible in these cases.
While not obtaining an instrument as hoped, the application of the law and the use of the downloaded data was key in attaining the best result for our clients.
Five of the eight matters have resolved to lesser, non-criminal, charges while the remaining three continue in negotiation and look to be headed for trial. The importance of these cases is showing how useful the downloaded data from the instruments can be in mounting a successful defence where all other factors appear against a client.
The evidence needed for such an assessment is typically not available in the initial disclosure provided to the accused on or soon after the first court appearance. It is important for a lawyer to request and obtain this information quickly. Given that the requirements of Ontario’s Early Ignition Interlock (Stream A) program requires a decision within the first 89 days after the offence occurred of whether or not to plead guilty, time is of the essence. Most times, a risk/reward assessment must be completed to determine whether seeking the disclosure is worth the delay.
Sometimes, often dependent on what jurisdiction the offence occurred in, the police and the Crown are not willing to provide all of the information requested due to the time involved in providing it. Which parts are relevant and which parts are not and knowing the difference is a key ability in a defence lawyer. Knowing what might show the kind of issue needed for a defence allows such requests to be justified.
Issues regarding the right to full disclosure interact with the right to a trial within a reasonable time. Theses fundamental rights protected under the Charter will need to be invoked to ensure that all of the required information is provided and that it is provided within a reasonable time limit. What is required and what is reasonable will often be subject to interpretation. Justifying the requests and ensuring the diligent provision of the information is to be stressed. The lawyer, in consultation with experts where necessary, should use the information obtained, to determine whether and how any errors occurred that should be brought to the Crown or the court’s attention. The provision of this information is the first step, but the important second step of reviewing it is what makes the first step relevant.
St-Onge Lamoureux lowers the bar for what is needed to show a malfunction of the instrument or an error in its operation. However, the constitutional right to disclosure of any information that might aid in the defence of an accused means that seeking additional disclosure beyond the initially provided disclosure, is almost always appropriate. This can lead to voluminous disclosure being requested and being provided, so knowing what is important and focussing such requests is emphasized through St-Onge Lamoureux. While a shotgun approach is attractive, properly narrowing the requests can often bear more fruit.
Another disclosure issue has to do with the availability to the defence of the breath testing instruments themselves. The unavailability of the newest approved instruments, such as the Intoxilyzer 8000C, to defence lawyers and experts has been problematic. This unavailability leads to questions being raised regarding the instruments’ reliability. If they work so well, then why are they not available for purchase privately so that they may be examined? A lack of testing by independently retained experts is a cause for concern. Without access to such instruments, will defence experts be able to provide opinions regarding whether malfunctions or errors occurred in the operation or use of the instrument, or will defence counsel be required to rely on the prosecution’s state-funded experts?
St-Onge Lamoureux strengthens the argument that disclosure is essential, but perhaps also weakens such an argument as an accused now needs only to point to a possible error or malfunction to raise a reasonable doubt. The issue of access to the knowledge required to determine if a malfunction or error is present, is one that will arise as the case law following St-Onge Lamoureux plays out.
To ensure the widest state of knowledge and to hold the criminal justice system to the high bar that is expected in a free and democratic society, lawyers in this field work with experts to determine what can aid in the building of a successful defence, and regularly pursue continuing education regarding the breath testing apparatus. The goal must not be just to convict those who are likely guilty but to ensure that those who may not be guilty be acquitted and that justice be done.