Mr. Phillip Michael Coffey and his spouse June, attended a wedding on August 20, 2010. Together they spent three (3) hours at the wedding. During the time that they attended this celebration, they consumed a bottle of sauvignon blanc, although June only consumed a five (5) ounce glass and he drank the balance of 21 ounces of the wine. In addition to the wine, Mr. Coffey ate a large meal consisting of salad, pasta and beef.
Mr. Coffey’s height was 5’11½” and his weight was in the range of 163 to 164 pounds.
Mr. Coffey had been diagnosed in 2006 of suffering from moderate to severe gastroesophogal reflux disease and his doctor had prescribed a drug, Nexium to control his symptoms of acid reflux. Unfortunately, Mr. Coffey did not take his prescription of 40 mgs of Nexium on this day.
After the wedding, the Coffey’s drove away, with Phillip at the wheel. At approximately 11 p.m. Mr. Coffey was pulled over by police, who were conducting a R.I.D.E. campaign at the intersection of Hockley Road and Third Line in the Town of Mono.
When asked by police if he had been drinking, Mr. Coffey admitted that he had previously consumed three (3) glasses of wine. The officer he spoke to demanded a breathlyzer test and Mr. Coffey complied. He “failed” the approved screening device test (breathlyzer) and upon failing was arrested by the officer for the over 80 offence.
After his arrest, Mr. Coffey was placed into custody of the police and transported to the Dufferin O.P.P. detachment, where two intoxilyzer tests were subsequently conducted. The results of these tests were 161 and 166 milligrams percent respectively at 12:41 and 1:03 a.m., double the legal limit of 80 milligrams.
He was criminally charged with having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood he operated a motor vehicle contrary to Section 253(1)(b) of the Criminal Code.
He challenged the charge and it went to trial, which lasted over 4 days (March 11, 2011, June 1st, 2011, May 30, 2012 and February 25, 2013) in front of Justice Douglas B. Maund.
The defence called an expert toxicologist, Mr. Ismail Moftah who testified on behalf of Mr. Coffey. Mr. Moftah testified that, on the basis of Mr. Coffey’s weight and other personal factors, in the event that he consumed twenty-one ounces of wine (that is, all of the bottle except for the five ounces said to have been consumed by Mrs. Coffey), his highest blood alcohol content at the lowest rate of alcohol elimination at the time of the offence would have been no greater than 66 milligrams percent.
Mr. Moftah testified about the potential impact of acid reflux symptoms on the test results at the relevant time. He indicated that if Mr. Coffey had consumed a large meal up to approximately 10:30 p.m., he believed he would still have food in his stomach which had yet to be digested. At the times of the tests of 12:41 a.m. and 1:03 a.m. respectively, the toxicologist believed that Mr. Coffey still could have had some amount of alcohol in his stomach and small intestine. His premise was also based upon the consumption of part of the last drink until approximately five minutes before being stopped. That is, immediately before leaving the wedding. Mr. Moftah’s conclusion was that if symptoms of acid reflux occurred under those conditions, regurgitated alcohol into Mr. Coffey’s mouth could have given a false high reading in both tests. His opinion that potential alcohol was still present in the stomach at the time of the tests was based on his information that the last drink was up to about 10:55 p.m. and that recent consumption of food would delay absorption of the alcohol. Mr. Moftah’s opinion was that the potential presence of mouth alcohol could have a dramatic effect and could produce abnormally high and false readings. In relation to the critical issue of the two relatively close readings in agreement of 161 and 166 milligrams percent, Mr. Moftah’s evidence was that having two such similar readings both affected by acid reflux was a “scientific possibility”. However, Mr. Moftah was unable to estimate the precise variability of those circumstances. As to the slope detector in the intoxiliyzer 8000C, which is designed to detect mouth alcohol, the toxicologist indicated that in his opinion, the slope detector was the least reliable function on the machine and its operation that evening could not be established.
On behalf of the Crown, another expert toxicologist, Mr. Jean-Paul Palmentier gave evidence. Mr. Palmentier is a forensic scientist and toxicologist with the Centre of Forensic Sciences. In his report Mr. Palmentier concluded as follows, “for GERD to have an effect on the Intoxilyzer 8000C alcohol result, the following conditions would have to be present:
(1) Alcohol in the stomach must be regurgitated into the oral cavity;
(2) The breath sample must be provided while alcohol is still present in the oral cavity;
(3) The Intoxilyzer 8000C slope detector which is capable of detecting residual mouth alcohol must not be activated; and
(4) Regurgitation must occur during each of the two breath tests for an individual to cause falsely high positive results on both breath tests to the same extent.”
Mr. Palmentier’s conclusion was as follows; “in my opinion it would be very difficult to satisfy the four conditions outlined and obtain two readings in good agreement (161 and 166 milligrams in 100 millilitres) twenty-two minutes apart.” In his viva voca evidence, Mr. Palmentier said that he found that the two intoxilyzer tests were in “excellent agreement”. In a situation where there was potential mouth alcohol, he believed and said he would expect that one reading would be significantly higher or at least not in such good agreement with the other reading. And further, this toxicologist stated that, on the facts of prior consumption as he understood them, he did not expect that there would still be alcohol remaining in the stomach of Mr. Coffey at the time of the intoxilyzer tests.
As to the proposition that regurgitation of alcohol from the stomach could have produced both breath tests in good agreement, Mr. Palmentier testified that he believed that this was “possible but more than likely to be impossible.” While he conceded that it was possible for the slope detector to fail to detect mouth alcohol as it is designed to do, he believed it was unlikely to have failed during both tests. He said that if the software which monitors the device including the slope detector had detected the presence of any mouth alcohol, it would effectively have not allowed the testing to proceed.
On cross-examination, Mr. Palmentier conceded that it was possible that there was some amount of alcohol in Mr. Coffey’s stomach at the time of the tests. He conceded that he did not know how fast the subject’s stomach would empty and any alcohol be absorbed. However, Mr. Palmentier reiterated that he still did not expect alcohol would still be present in the stomach at the time of the tests. And, Mr. Palmentier believed that his original opinion in his report that mouth alcohol produced by acid reflux resulting in two such readings in good agreement being “very difficult to satisfy” is consistent with his evidence at trial that the circumstances would be “next to impossible to produce.”
After having heard all of the evidence, Justice Maund began to assess it before his decision. He relied on the following:
R. v. St. Onge-Lamourex upheld the first of the three amendments in section 258(1)(c) of the Criminal Code. An accused who raises a defence such as this one is now obliged to raise a reasonable doubt that the instrument was not functioning or operating properly. The Supreme Court of Canada made it clear in paragraph 78 of R. v. St. Onge-Lamourex that there is no limitation on the type of evidence which might be open to an accused to raise such a doubt. As the Court states explicitly in paragraph 78: 2“…. he or she might argue that health problems had affected the functioning of the instrument.” Evidence capable of raising such a reasonable doubt must be accepted by the Court in the sense that it meets normal evidentiary standards. But such evidence need not rise to a standard of scientific probability or certainty.
The evidence of both toxicologists agreed that four conditions must be present to establish that the instrument was not functioning in these circumstances. What must be established is:
1) Alcohol must be present in the stomach capable of being regurgitated;
2) The alcohol must be regurgitated into the mouth and still present at the time of both breath tests;
3) The slope detector on the instrument which is capable of detecting the presence of mouth alcohol must not be functioning during both tests; and,
4) The mouth alcohol present in the oral cavity during both tests must be capable of producing two tests in good agreement.
The two toxicologists came to different conclusions on the evidence. They disagreed firstly that alcohol might still be present in the stomach of Mr. Coffey at the time of the tests. Mr. Palmentier conceded that he lacked information about the rate of potential absorption of the alcohol. In that regard, Mr. Moftah cited the potential for food delaying absorption of the alcohol and the late consumption in coming to his conclusion. Mr. Moftah’s opinion or theory as to the presence of stomach alcohol appears to be supported by the facts.
The experts also disagreed about the likelihood of the slope detector not functioning during both tests. Mr. Palmentier indicated that the software which monitors the instrument would shut down the procedure if the slope detector found a presence of mouth alcohol. I understand that there is no way of confirming whether the slope detector was operating properly. While Mr. Moftah testified that the test records recorded no apparent malfunction, he also indicated that, in his opinion, the slope detector is the least reliable mechanism in the intoxilyzer 8000C.
In my view, the Defence need not establish the four factors necessary to impugn the proper functioning of the instrument to a degree of a scientific probability or certainty. What is necessary is to establish a realistic scientific possibility. A reasonable doubt must be raised on the basis of credible evidence tending to show that the instrument was malfunctioning. I find that the evidence before me has established such a reasonable doubt as required by section 258(1)(c)(iv).
The balance of the analysis can be described as a traditional “Carter” inquiry. As I have found that the defence evidence as to the level and pattern of consumption and the other supporting factors was credible and corroborated, Mr. Moftah’s opinion put Mr. Coffey’s BAC below the legal limit, that is at 66 mgs percent at the time of the offence.
Having come to this conclusion, guilt has not been established. The charge against Mr. Coffey shall be dismissed.