Territorial Court

R. v. Paul PETRIN						2011 NWTTC 21	
File: 	T3 CR 2011000027


		          					
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:



HER MAJESTY THE QUEEN


- and -


PAUL PETRIN




REASONS FOR JUDGMENT

of the

HONOURABLE JUDGE B. E. SCHMALTZ




Heard at:				Inuvik, Northwest Territories
					August 9 and 10, 2011

Reasons Filed:			November 22, 2011

Counsel for the Crown:		Wendy Miller

Counsel for the Defendant:		Shawn Beaver



Sections 253(a) and 253(b) of the Criminal Code


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:


HER MAJESTY THE QUEEN

- and –


PAUL PETRIN

___________________________________________________________________

I.	INTRODUCTION

[1]	Paul Petrin is charged with operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, and with operating a motor vehicle with a blood/alcohol level over .08.  The charges arose from events of December 4, 2010, in Inuvik, Northwest Territories.  The matters proceeded to trial on August 9 and 10,  2011.  Both Crown and Defence filed written submissions prior to making closing arguments on October 14, 2011, and the matters were adjourned to today for decision.

II.	FACTS

[2]	On December 4, 2010, at approximately 9:00 pm, Cst. MacEachern saw a truck traveling on Marine Bypass Road in Inuvik; the truck appeared to be traveling at a high speed and to brake as it approached Cst. MacEachern’s marked police vehicle.  The truck passed Cst. MacEachern and Cst. MacEachern turned onto Marine Bypass Road following the truck.  Cst. MacEachern followed the truck for approximately 2.5 kilometres, during which time Cst. MacEachern noted some irregular driving, such as crossing over the middle line and driving in the centre of the road.  Cst. MacEachern followed the truck into the water facility area, which is a “no trespassing” area, and activated the emergency equipment on his police vehicle.

[3]	Cst. MacEachern approached the driver’s side of the truck and recognized the driver as Paul Petrin whom Cst. MacEachern had met a number of times before.   When Cst. MacEachern had dealt with Mr. Petrin previously, Mr. Petrin was sober.  Cst. MacEachern spoke with Mr. Petrin and noted that Mr. Petrin’s speech was slurred, and also detected an odor of liquor.  Mr. Petrin was the only person in the vehicle.

[4]	Cst. MacEachern suspected that Mr. Petrin had alcohol in his body and made a demand for Mr. Petrin to supply a sample of his breath into a roadside screening device; Mr. Petrin complied with this demand.  At 9:17 pm Mr. Petrin registered an “F” on the roadside screening device indicating to Cst. MacEachern that Mr. Petrin’s blood alcohol content was above .099.

[5]	Cst. MacEachern then arrested Mr. Petrin for driving over .08, and read the formal breath demand to Mr. Petrin.

[6]	Mr. Petrin estimated that he and Cst. MacEachern were at the water facility area for approximately 15 minutes.  Before leaving the water facility area, Mr. Petrin told Cst. MacEachern that he was concerned about his daughter and had been out looking for her and friends as one of their snowmobiles may have broken down.  On the way to the RCMP Detachment Cst. MacEachern made a detour to Mr. Petrin’s shop to ensure that Mr. Petrin’s daughter had returned safely.  Both Mr. Petrin’s snowmobiles were parked at the shop, indicating that Mr. Petrin’s daughter and her friends had returned safely.  It took approximately 10 minutes to drive from the water facility area to the Inuvik RCMP Detachment.

[7]	At the Detachment Mr. Petrin was searched, and then given the opportunity to contact counsel; initially Mr. Petrin did not want to speak to counsel, but at Cst. MacEachern’s urging agreed to contact counsel.  Mr. Petrin spoke to counsel in private, then used the washroom, and was then turned over to Cpl. Pike, a qualified breath technician.  Cpl. Pike took two samples of Mr. Petrin’s breath, using an approved instrument, specifically a BAC Datamaster C.

[8]	The first sample of Mr. Petrin’s breath, taken at 10:06 pm, indicated a blood alcohol concentration of 120 milligrams of alcohol in 100 millilitres of blood; the second sample, taken at 10:25 pm, indicated a blood alcohol concentration of 110 milligrams of alcohol in 100 millilitres of blood.  The Certificate of Analysis (the Certificate) was served on Mr. Petrin and tendered as Exhibit 1 on the trial.

[9]	In 2005 Mr. Petrin was diagnosed with acid reflux, and given prescription medication for this condition.  Mr. Petrin testified that the medication relieved his symptoms in approximately 3 months.  Mr. Petrin’s symptoms returned in October 2010, and he was again given a prescription to relieve his symptoms; the medication prescribed to Mr. Petrin on October 11, 2010 was not the same as that prescribed in 2005.  Mr. Petrin testified that the medication took a month to “kick in”.
A.	Paul Petrin’s Evidence:
[10]	Mr. Petrin testified that he consumed 6 to 7 ounces of rye between 10:00 pm on December 3, and 1:00 am on December 4, 2010.  Mr. Petrin testified that on December 4, between 4:00 pm and 5:00 pm, he had two drinks of some sort of alcoholic beverage.  Mr. Petrin poured the alcohol straight from the bottle, and estimated each drink to be approximately 2 ounces.  Mr. Petrin did not know what kind of liquor this was, nor what the alcohol content of it was; he did testify that it had a licorice flavour.
B.	Dr. Malicky’s Evidence:
[11]	Dr. Jerry Malicky testified at the trial.  Dr. Malicky is not a medical doctor, but has a Ph.D. in Pharmaceutical Chemistry.  Dr. Malicky was qualified to give expert opinion evidence with respect to the absorption and elimination of alcohol in the human body, the operation of a Borkenstein breathalyzer and the Intoxilyzer 5000C, and the effect that mouth alcohol may have on breathalyzer results.

[12]	Dr. Malicky is a non-practicing member of the Alberta Pharmaceutical Association.  His experience in dispensing medication was from “many years ago” when he was an undergraduate helping some friends out as a pharmacist “as late as 1973 or four, whatever.”  His curriculum vitae indicates that from 1977 to the present he has been a Medical Legal Consultant.

[13]	Dr. Malicky testified that he had instructed at the university level in toxicology classes on the absorption and elimination of alcohol; his curriculum vitae indicated that his last teaching experience was in 1977.

[14]	Dr. Malicky has significant experience in operating a Borkenstein breathalyzer, and has been testing individuals for approximately 30 years.  Dr. Malicky expects that he has tested more individuals for blood alcohol concentration than anyone else in the world; he thinks he has probably tested in excess of 5,000 individuals.  It is not clear to me how he knows this is more than “anyone else in the world”.

[15]	Dr. Malicky testified that he “may have taken a continuing education course on acid reflux and current methods to treat” but he had no recollection of that.  He further stated that he did not keep current with respect to any literature on acid reflux.  It was Dr. Malicky’s evidence that acid reflux is what is commonly called “heartburn”, and that it is a very common condition that occurs and is simply bringing the contents of the stomach into the esophagus.  Dr. Malicky had not done any studies in the area of acid reflux; he had no professional development in the area of acid reflux.  He simply knew of acid reflux on the same level as any pharmacist may be aware of it.  Dr. Malicky’s experience with acid reflux was from working summers as a trainee in a pharmacy in the mid sixties.  He described his experience as:  “Where people would come in and you give them antacids typically, Tums and something like this, and tell them not to drink alcohol.”  Mr. Petrin testified that his doctor had not told him that alcohol would aggravate his condition.  In Dr. Malicky’s opinion, acid reflux is not a severe medical condition, but is a common occurrence and typically over the counter preparations would be taken to relieve the problem.

[16]	Dr. Malicky prepared a report with respect to Paul Petrin (Exhibit 3).  Dr. Malicky based the findings in his report on the following understandings:
I understand that Mr. Petrin, a male 5 feet 9 inches tall and 220 pounds, consumed 7 ounces of rye (40% alcohol) from 10:00 pm to 1:00 am in the 24 hour period prior to 4:00 pm on the date in question.  It is further understood that on the date in question Mr. Petrin consumed two drinks of liqueur or hard alcohol (maximum 2 ounces each; 40% alcohol) between 4:00 pm and 5:00 pm.

There is no direct evidence as to Mr. Petrin’s height and weight at the time that he was charged with these offences.

III.	ANALYSIS
Section 258 - The Presumptions
[17]	Mr. Petrin received a copy of the Certificate and reasonable notice of the Crown’s intention to enter the Certificate as evidence on the trial.  Section 258(7) of the Criminal Code requiring that an accused receive a copy of the Certificate and reasonable notice of the Crown’s intention to introduce it into evidence, has been complied with.

[18]	Based on Cst. MacEachern’s observations and the result of “F” registered by the roadside screening device indicating to Cst. MacEachern that Mr. Petrin had a blood alcohol concentration in excess of 99.9 milligrams percent, I find that Cst. MacEachern had reasonable grounds to believe Mr. Petrin had committed an offence under s. 253 of the Criminal Code.  Further I find that Cst. MacEachern made a proper breath demand to Mr. Petrin as soon as practicable.  I am satisfied that the samples of Mr. Petrin’s breath were taken pursuant to a demand made under s. 254(3) of the Criminal Code.

[19]	The Certificate states that the analysis of Paul Petrin’s breath samples was made by means of an approved instrument which the qualified technician ascertained to be in working order by means of an identified alcohol standard suitable for use in the approved instrument.  Further the Certificate states that both breath samples were received from Paul Petrin directly into the approved instrument in Inuvik, and states the time and date of each sample.  Lastly, the Certificate sets out the result of the analysis of each sample of Paul Petrin’s breath.

		i)	As soon as practicable
[20]	Mr. Petrin’s position is that samples of his breath were not taken as soon as practicable after the time when the offence was alleged to have been committed as required by s. 258(1)(c) of the Criminal Code, and consequently, the Crown cannot rely on s. 258(1)(c).  In order for the Crown to rely on the presumptions in s. 258(1)(c), samples of Mr. Petrin’s breath must have been “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”.

[21]	The first sample of Mr. Petrin’s breath was provided at 10:06 pm, the second sample at 10:25 pm; Mr. Petrin was first seen driving at 9:00 pm, followed for approximately 2.5 kilometres, and then stopped by Cst. MacEachern, so there is no issue that the first sample was taken within two hours of the time when the offence was alleged to have been committed, and there was an interval of at least fifteen minutes between the times when the samples were taken.  The issue is, were Mr. Petrin’s breath samples taken as soon as practicable after the time when the offence was alleged to have been committed.

[22]	At 9:17 pm, Mr. Petrin registered a ‘fail’ on the roadside screening device.  After Mr. Petrin failed the breath test administered on the roadside screening device, Cst. MacEachern had reasonable grounds to believe that Mr. Petrin had committed an offence under s. 253 of the Criminal Code, and Mr. Petrin was arrested, chartered and cautioned for operating a motor vehicle with a blood alcohol concentration over .08.  Cst. MacEachern read the formal breath demand to Mr. Petrin at 9:21 pm, and after that Mr. Petrin was taken to the Inuvik RCMP Detachment with a short detour past Mr. Petrin’s shop to ensure that his daughter and her friends had returned from snowmobiling.  Once at the Detachment, Mr. Petrin was searched, he was again given his right to counsel, which he initially declined or waived, but was then encouraged by Cst. MacEachern to exercise his right to counsel.  Mr. Petrin then agreed to contact counsel, which he did in private.  There is no evidence as to how long Mr. Petrin spoke to counsel.  Once Mr. Petrin finished speaking with counsel, and Cst. MacEachern ensured that Mr. Petrin was satisfied with his contact with counsel, Mr. Petrin then asked to use the washroom, which Cst. MacEachern allowed him to do.  Again, there is no evidence as to how long it took for Mr. Petrin to use the washroom.  Mr. Petrin was then turned over to the custody of Cpl. Pike, a qualified technician, and provided his first breath sample at 10:06 pm.

[23]	There have been many cases that have interpreted the phrase as soon as practicable.   As soon as practicable does not mean as soon as possible.  It has been held to mean “within a reasonably prompt time in the circumstances”, “with reasonable promptness”, “in the absence of unnecessary or unreasonable delay”.  When all of the evidence is considered is there a reasonable explanation for the delay if, in fact, there was a delay?

[24]	Mr. Petrin was stopped and detained at approximately 9:15, he was arrested at some point within the next 5 minutes after failing a roadside screening test, he was given his right to counsel and police caution, he had told Cst. MacEachern that he was out looking for his daughter who was snowmobiling with friends and may have been having mechanical trouble; before being taken to the detachment, Mr. Petrin was taken to his shop to ensure his daughter had returned safely (which was eminently reasonable in the circumstances), he was taken to the detachment, searched, given the opportunity to contact counsel which he exercised, used the washroom, and provided his first breath sample at 10:06, approximately 45 minutes after he had been read the breath demand.

[25]	The Crown does not have to call evidence to account for every moment between the demand, and the taking of the breath sample.  There is evidence of what occurred between making the breath demand and taking the first sample, and I am satisfied that in consideration of all the circumstances, all of Cst. MacEachern’s actions were reasonable if not necessary, i.e. it was necessary to detour to Mr. Petrin’s shop to ensure the safety of his daughter and her friends before proceeding to the Detachment, it was prudent of Cst. MacEachern to encourage Mr. Petrin to exercise his right to counsel, once Mr. Petrin agreed that he would contact counsel, it was necessary to allow Mr. Petrin to exercise his right to counsel, it was necessary to allow Mr. Petrin to use the washroom as needed.

[26]	Common sense and experience dictates that it takes time to do things.  A period of 45 minutes to get from the point of being at the water facility area where the demand was made to Mr. Petrin to provide samples of his breath, to the taking of a sample of Mr. Petrin’s breath at the Inuvik Detachment, is reasonable, if not even efficient.  All in all when the circumstances are taken into account, even without evidence of exactly how long it took to do any given task, e.g. to search Mr. Petrin, or how long any given or segment took, e.g. for Mr. Petrin to speak to counsel or to use the washroom, I find the samples of Mr. Petrin’s breath were taken as soon as practicable.  To be clear on considering all the evidence I would expect that to do all that was done between the demand and the taking of the first sample, which was necessary and reasonable in the circumstances, would realistically take forty five minutes.
		
		ii)	Evidence tending to show
[27]	In the absence of “evidence tending to show” certain requirements, formerly referred to as evidence to the contrary, the Crown can rely on both sections 258(1)(c), and 258(1)(g) in combination with s. 25(1) of the Interpretation Act , for what is referred to as the presumption of accuracy.  Section 258(1)(c) provides that evidence of the results of the analysis of Mr. Petrin’s breath is conclusive proof that the blood alcohol concentration was the lowest of the concentrations determined by the analysis, i.e. 110 milligrams of alcohol in 100 millilitres of blood; s. 258(1)(g) provides that the Certificate is evidence of the facts stated therein, i.e. that when Mr. Petrin provided a sample of his breath at 10:06 pm, he had a blood alcohol level of 120 milligrams of alcohol in 100 millilitres of blood, and when Mr. Petrin provided a second sample of his breath at 10:25 pm, he had a blood alcohol level of 110 milligrams of alcohol in 100 millilitres of blood (presumption of accuracy).

[28]	Further, the Crown can rely on s. 258(1)(c) to establish that Mr. Petrin’s blood alcohol content was 110 milligrams of alcohol in 100 millilitres of blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed (presumption of identity).  Further the presumption in s. 258(1)(d.1) provides that if the results of the analysis of Mr. Petrin’s breath show a blood alcohol concentration in excess of 80 milligrams percent at the time when the samples were taken, then evidence of such results is proof that that Mr. Petrin’s blood alcohol concentration at the time the offence was committed exceeded 80 milligrams percent (presumption of identity).

[29]	Mr. Petrin’s position is that if samples of his breath were taken as soon as practicable, which I have found, then the evidence called on behalf of defence tends to show that the approved instrument was not operated properly, that the improper operation of the approved instrument resulted in the determination that Mr. Petrin had a blood alcohol concentration exceeding 80 milligrams percent, and that the concentration of alcohol in Mr. Petrin’s blood would not in fact have exceeded 80 milligrams percent at the time that Mr. Petrin was driving.  Mr. Petrin submits that the defence evidence has tended to show that the presumption of accuracy cannot be relied on in this case.   Defence has no burden per se with respect to “evidence tending to show”, but need only raise a reasonable doubt with respect to all three of these requirements in order to rebut  the presumption of accuracy.

[30]	Mr. Petrin testified that he had two drinks of some sort of alcoholic beverage between 4:00 pm and 5:00 pm the afternoon prior to when he provided samples of his breath.  He does not know what the alcohol was, or what the alcohol content of it was.

[31]	Before I refer to Dr. Malicky’s evidence on this case, I will make some general comments with respect to Dr. Malicky as a witness.  Dr. Malicky was not a careful witness, and I found his evidence at times over-stated, perhaps exaggerated, or without foundation.  For example, as I referred to above, Dr. Malicky believed he had tested more individuals than anyone else in the world.  How would he know that?  A very telling example of the care with which Dr. Malicky gave evidence on this case is a comparison of the Affidavit he swore with respect to this matter, and his answers in cross-examination:
In Dr. Malicky’s Affidavit (Exhibit 2), Dr. Malicky states:
I have previously been qualified as an expert in the areas of:
…
c.	Effects of acid reflux on breath-testing device results.

In cross-examination Dr. Malicky testified as follows:
Q.	… You mentioned that you had been qualified as an expert previously in the effects of acid reflux on breath testing devices, is that correct?

A.	I don’t think it’s ever been posed quite in that direction, the effects that occurred from the – I don’t know if I’ve been qualified exactly in that regard but I’ve been qualified, the results on whether it be regurgitating, vomiting, acid reflux, anything bringing the contents of the stomach into the mouth, I’ve been qualified as an expert in that regard.

Q. 	So it’s my understanding then that you have never specifically been qualified as an expert on the effects of acid reflux on breath testing device results, is that correct?

A.	Yes, because it would be nothing that, that would be of interest to me or the court in most circumstances other than if there was alcohol present.
…
Q.	Okay.  But just to clarify, you have never been qualified as an expert in a court before as an expert on the effects of acid reflux on breath testing devices, that’s correct?

A.	I’ve never been tendered as an expert in that specific regard that I can recall.

Dr. Malicky’s evidence in court on August 10, 2011, was inconsistent with the Affidavit that he swore on July 28, 2011.

[32]	Dr. Malicky had a nonchalant attitude to the evidence he was giving especially so with respect to his education and experience.  In listening to Dr. Malicky’s evidence dealing with his experience, I found it surprising that Dr. Malicky was initially tendered as an expert to give expert evidence on “the effects of acid reflux on breath-testing devices”, though he had sworn that he had been previously qualified as an expert in this area.  Yet when asked about his education or experience with respect to acid reflux, the only education or experience Dr. Malicky had was that he may have taken a continuing education course on acid reflux, but had no recollection of that; he does not keep current with respect to any literature on acid reflux; he had not done any studies in the area of acid reflux; he had no professional development in the area of acid reflux.  It is not surprising that Dr. Malicky had in fact never had been qualified as an expert in that area.

[33]	Dr. Malicky testified that if Mr. Petrin had 4 ounces of alcohol, based on average rates of absorption and elimination, and based on various alcoholic contents of the beverage that Mr. Petrin consumed, his blood alcohol concentration would have been somewhere between zero milligrams percent and 83 milligrams percent.

[34]	In fairness to Dr. Malicky, the range that he testified to is so extreme partly because it is not known what Mr. Petrin was drinking.  That being said, Dr. Malicky’s figures were also based on “average” absorption and elimination rates in the population.  Dr. Malicky testified that the average elimination rates are between 10 and 20 milligrams percent; Dr. Malicky also testified that he had personally tested an individual with an elimination rate of 25 milligrams percent.  Being that there are people with a higher elimination rate than 20 milligrams percent, I would assume there are also people with a lower elimination rate than 10 milligrams percent.

[35]	Dr. Malicky testified as follows:
I’ve never seen a product commercially available, over-proof spirits, that contained any more than 80 percent alcohol which is getting close to pure alcohol which is 95 percent alcohol.
…
[C]ommercially available products usually sold in Alberta liquor stores typically don’t exceed 40 percent alcohol or 50 percent alcohol, but you can get some specialty products like over-proof rums and over-proof high-test imports.
…
Maybe, maybe I should say this, maybe I should retract.  Going to university and being in the faculty pharmacy, oftentimes parties would occur where, or the pharmacy grade, pharmaceutical grade alcohol was used as the beverage as in punches and people have consumed absolute alcohol…  But theoretically I guess it’s possible that he could have had pure alcohol which would be not really a beverage, it would be just pure alcohol … but it’s unlikely that he would have but he could have I suppose.

Dr. Malicky was not an expert in what alcohols were available in Canada or throughout the rest of the world, and I give no weight to his evidence in that area.

[36]	There was no reliable evidence called as to what the alcohol content of the beverage that Mr. Petrin drank was.

[37]	All of that being said, s. 258(1)(d.01) of the Criminal Code states:
(d.01)  for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i)	the amount of alcohol that the accused consumed,

(ii)	the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

(iii)	the calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

[38]	When s. 258(1)(d.01) is considered, Mr. Petrin’s evidence of what he drank cannot be evidence tending to show that the breathalyzer was not operated properly; nor can Dr. Malicky’s evidence based on the amount of alcohol Mr. Petrin said he had consumed be evidence tending to show that the breathalyzer was not operated properly.
		iii)	Acid reflux
[39]	Mr. Petrin testified that he had a condition known as acid reflux, and Mr. Petrin described the symptoms of this condition.  He further submitted some medical records showing that he had been diagnosed with this condition and had received prescription medication to treat the condition.  I accept Mr. Petrin has acid reflux.

[40]	Dr. Malicky was not qualified as an expert with respect to the effects of acid reflux on breath testing instruments, and nor was he qualified as an expert on this condition or the medical implications of this condition or how exactly this condition effects the functions of the body.  Once again, I emphasize, Dr. Malicky is not a medical doctor.

[41]	Dr. Malicky testified that acid reflux is typically treated with an antacid such as Tums, or other over the counter medications.  Mr. Petrin had been given two different prescriptions for his condition, so either Dr. Malicky was mistaken, or perhaps has oversimplified the condition, perhaps more has been learned about the condition since Dr. Malicky’s training or experience in the area, or perhaps Dr. Malicky is not aware of the specifics of Mr. Petrin’s condition.  Dr. Malicky has never met Mr. Petrin.

[42]	Though Dr. Malicky testified as to the symptoms, effects, and physical implications of acid reflux, in light of Dr. Malicky’s education and experience I give very little, if any, weight to any of Dr. Malicky’s evidence with respect to the symptoms of acid reflux, or its effects, if any, on the results of the analysis of breath samples taken on breath testing devices to determine blood alcohol content.  I found Dr. Malicky’s evidence as well as his report very conclusory; Dr. Malicky did not explain the reasons for his conclusions and in light of his education and experience in the area I find no basis to simply accept his evidence in this area.

[43]	In carefully reviewing the evidence on this trial, I do not know what effect acid reflux has on the analysis of breath samples.  It is unfortunate that there was no evidence called on exactly what acid reflux is; whether or not there can be alcohol in the stomach (as opposed to the blood) four to five hours after ingesting it; whether or not coughing can bring alcohol into the mouth, as opposed to belching or burping; if alcohol is in fact still in the stomach after four to five hours, how much alcohol would be in the stomach; if acid reflux brings alcohol into the esophagus, how would that effect mouth alcohol; and possibly other questions relating to Mr. Petrin’s condition that Dr. Malicky was not qualified to answer.  Medical evidence may have been helpful on this trial.

[44]	Further, Dr. Malicky’s evidence was based on certain assumptions or “understandings”.  Dr. Malicky’s report estimates what Mr. Petrin’s blood alcohol content would have been based on these “understandings” using the updated Widmark formula.  Though Dr. Malicky did not testify as to what the updated Widmark formula was, I know that the Widmark formula takes into account a person’s weight in predicting his or her blood alcohol level.  I do not know what Mr. Petrin’s weight was on December 4, 2010.   However, this being said, it is not this absence of evidence that I base my reasons on, but on the absence of evidence of the effects of acid reflux or as referred to in R. v. Lynch , the biological phenomena caused by in that case gastroesophageal reflux, on the operation of a breathalyzer, or analysis of the blood alcohol content of a person with such condition.

IV.	CONCLUSION

[45]	In consideration of all the evidence on this trial, there being no evidence tending to show 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 Mr. Petrin’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and that the concentration of alcohol in Mr. Petrin’s blood would not in fact have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time he was driving, I am satisfied beyond a reasonable doubt that Mr. Petrin was operating a motor vehicle on the date in question, with a blood alcohol level exceeding .08, and he will be convicted of Count 2.

[46]	With respect to the charge of impaired driving arising from the same incident, I am not satisfied that the evidence is sufficient to meet the test set out in R. v. Stellato , that impaired operation of a motor vehicle is established by the proof of any degree of impairment affecting an accused person’s ability to operate a motor vehicle.  The evidence establishes that Mr. Petrin’s driving may have appeared irregular, but I would not go so far as to find it erratic.  He may have been travelling at what appeared to Cst. MacEachern to be a high rate of speed, and was driving close to the middle of the road, and I accept that his speech was somewhat slurred.  Mr. Petrin’s evidence of looking out for his daughter who was out snowmobiling provides a reasonable explanation for what may be viewed as driving close to the middle of the road or to one side or the other.  The evidence that Mr. Petrin appeared to Cst. MacEachern to be travelling at a high rate of speed is not in these circumstances indicative of impaired driving.  The evidence of driving is not sufficient, and there is no other evidence that Mr. Petrin’s motor or mental skills were such that I could find beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol.  Mr. Petrin will be acquitted of count 1.  		

			

						B.E. Schmaltz, T.C.J.


Dated at Inuvik, Northwest Territories
this 22nd day of November, 2011
R. v. Paul PETRIN				2011 NWTTC 21
File: 	T3 CR 2011000027





IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN


- and –


PAUL PETRIN





REASONS FOR JUDGMENT

of the

HONOURABLE JUDGE B. E. SCHMALTZ