Her Majesty the Queen v. Labadie, 2011 ONCA 227

Her Majesty the Queen v. Labadie [Indexed as: R. v. Labadie]

105 O.R. (3d) 98

2011 ONCA 227

Court of Appeal for Ontario,

Blair, MacFarland and Watt JJ.A.

March 24, 2011

Criminal law -- Appeals -- Summary conviction appeal -- Following successful Crown appeal from acquittal summary conviction appeal court having no authority under s. 822 of Code to remit matter to trial judge for reconsideration in accordance with summary conviction appeal court's reasons -- Summary conviction appeal court should have exercised its jurisdiction to enter verdict of conviction and remit case to trial judge for sentencing -- Criminal Code, R.S.C. 1985, c. C- 46, ss. 813(b), 822.

Criminal law -- Drinking and driving offences -- Driving over 80 -- Trial judge finding that Crown was not entitled to rely on presumption of identity as evidence of qualified technician did not establish that sample was provided "directly" into approved instrument -- Judge's finding based on misapprehension of uncontroverted evidence establishing conditions precedent for reliance on presumption of identity -- Summary conviction appeal judge allowing Crown's appeal but erroneously remitting matter to trial judge for reconsideration as no jurisdiction to grant that remedy -- Verdict would necessarily have been different had trial judge not misapprehended technician's evidence -- Appropriate remedy being to enter verdict of conviction and to remit case to trial judge for sentencing -- Criminal Code, R.S.C. 1985, c. C-46, s. 822.

The accused was charged with driving over 80. To prove the accused's blood-alcohol concentration at the time of driving, the Crown relied upon the presumption of identity in s. 258(1)(c) of the Criminal Code. The trial judge found that the evidence of the qualified technician did not establish that the sample was provided "directly" into an approved instrument, as required by s. 258(1)(c)(iii), thus depriving the Crown of the presumption of identity. In the absence of evidence of the accused's blood-alcohol concentration at the time of driving, the trial judge dismissed the charge. The summary conviction appeal judge allowed the Crown's appeal, finding that the trial judge had misapprehended the evidence of the qualified technician, who had, in fact, testified that the accused provided a proper sample "directly" into the instrument. The matter was remitted to the trial judge to reconsider his verdict in accordance with the summary conviction appeal judge's reasons. The Crown applied for leave to appeal and sought to have the court enter a conviction.

Held, the appeal should be allowed.

Leave to appeal should be granted. The issue raised -- the appellate jurisdiction of the summary conviction appeal court in appeals taken by the Attorney General under s. 813 from dismissals of informations at trial in summary conviction proceedings -- was of significance to the general administration of criminal justice, and the appeal had merit. [page99 ]

In appeals under s. 813(b) of the Criminal Code, the summary conviction appeal court has no jurisdiction under s. 822(1) of the Code to remit the case to the trial court for reconsideration "together with the opinion of the court" as the summary conviction appeal court judge purported to do in this case. Section 839(2) of the Code incorporates the provisions of ss. 673-689 of the Code into summary conviction appeals to the Court of Appeal under s. 839(1)(a), with such modification as the circumstances require. Because of the incorporation of s. 686(4)(b)(ii), a summary conviction appeal court may enter a verdict of conviction on an appeal from acquittal. The trial judge erred in law by failing to apply the presumption of identity to the uncontroverted evidence of the officer, which established the conditions precedent for reliance on the presumption. The trial judge found that all the other elements of the offence were proven. But for the trial judge's error of law, the verdict would have been different and the judge would have convicted the accused. In these circumstances, it was appropriate for the Court of Appeal to enter a verdict of guilty and remit the case to the trial judge for sentencing.

APPEAL by the Crown from a decision of Ducharme J. of the Superior Court of Justice, sitting as a summary conviction [page100] appeal court, on October 29, 2009 remitting a case to the trial judge for reconsideration.

Cases referred to R. v. Antonelli, 1977 405 (BC CA), [1977] B.C.J. No. 1127, 5 B.C.L.R. 154, 38 C.C.C. (2d) 206, 2 W.C.B. 101 (C.A.); R. v. Ash, 1990 6500 (NL CA), [1990] N.J. No. 55, 81 Nfld. & P.E.I.R. 1, 54 C.C.C. (3d) 66, 9 W.C.B. (2d) 400 (C.A.); R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, [1996] S.C.J. No. 61, 135 D.L.R. (4th) 20, 197 N.R. 172, J.E. 96-1162, 106 C.C.C. (3d) 481, 48 C.R. (4th) 1, 30 W.C.B. (2d) 563; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345, [1989] S.C.J. No. 87, 61 D.L.R. (4th) 480, 100 N.R. 321, J.E. 89-1297, 36 O.A.C. 1, 50 C.C.C. (3d) 193, 71 C.R. (3d) 350, 42 C.R.R. 193, 8 W.C.B. (2d) 469; R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 1987 171 (ON CA), 58 O.R. (2d) 737, [1987] O.J. No. 178, 37 D.L.R. (4th) 649 (C.A.); R. v. Gross, [2001] M.J. No. 473, 2001 MBCA 175, 160 Man. R. (2d) 111, 51 W.C.B. (2d) 472; R. v. Hewlin, 1999 NSCA 54, [1999] N.S.J. No. 70, 174 N.S.R. (2d) 93, 42 W.C.B. (2d) 214 (C.A.); R. v. Kelly, [2002] N.S.J. No. 583, 2002 NSCA 164, 243 N.S.R. (2d) 201, 213 C.C.C. (3d) 385, 71 W.C.B. (2d) 394; R. v. Medicine Hat Greenhouses Ltd., 1981 ABCA 114, [1981] A.J. No. 895, [1981] 3 W.W.R. 587, 26 A.R. 617, 59 C.C.C. (2d) 257, [1981] C.T.C. 141, 81 D.T.C. 5100, 6 W.C.B 15 (C.A.); R. v. Multitech Warehouse (Manitoba) Direct Inc., 1995 6261 (MB CA), [1995] M.J. No. 285, 102 Man. R. (2d) 141, 100 C.C.C. (3d) 153, 62 C.P.R. (3d) 305, 27 W.C.B. (2d) 571 (C.A.); R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, 24 D.L.R. (4th) 453, 63 N.R. 241, [1986] 1 W.W.R. 673, 38 Man. R. (2d) 257, 23 C.C.C. (3d) 225, 49 C.R. (3d) 136, 15 W.C.B. 339; R. v. Wilcox, [2001] N.S.J. No. 85, 2001 NSCA 45, 192 N.S.R. (2d) 159, 152 C.C.C. (3d) 157, 49 W.C.B. (2d) 198 (C.A.); R. v. Wilson, 1993 2875 (BC CA), [1993] B.C.J. No. 2427, 36 B.C.A.C. 161, 86 B.C.L.R. (2d) 103, 86 C.C.C. (3d) 145, 26 C.R. (4th) 352, 20 C.R.R. (2d) 344, 49 M.V.R. (2d) 1, 22 W.C.B. (2d) 20 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46, ss. 258(1)(c), (iii), 613(4), Part XXI [as am.], 673-689 [as am.], 675(1)(a), 676(1)(a) [as am.], (b), (c), 686 [as am.], (1)(a), (b)(iii), (4) [as am.], (b)(ii) [as am.], (5) [as am.], 813 [as am.], (b), (i), 822 [as am.], (1), 830 [as am.], (1) [as am.], 834 [as am.], (1)(b), 839(1) [as am.], (a), (2)

David Friesen, for applicant/appellant. Frank Miller, for respondent.

The judgment of the court was delivered by

1WATT J.A.: -- This is a tale of two mistakes. And of our attempt to determine whether we can correct them.

2The first mistake happened at trial. It began when the trial judge misapprehended the testimony of a witness, about evidence that established a condition precedent to the admissibility of other evidence crucial to the prosecution's case. That misapprehension resulted in a dismissal of the charge contained in the information.

3The second mistake occurred in the disposition the summary conviction appeal judge made of the Attorney General's appeal from acquittal to the Superior Court of Justice. Instead of entering a conviction or ordering a new trial, the summary conviction appeal judge remitted the case to the trial judge to reconsider his verdict based on a correct understanding of the misapprehended evidence.

4The Attorney General seeks leave to appeal to this court and invites us to make the order he submits the summary conviction appeal judge should have made: to enter a conviction and either impose sentence or remit the case to the trial judge to do so.

5For reasons that I will develop, I would grant leave to appeal, allow the appeal, set aside the order of the summary conviction appeal judge remitting the matter to the trial judge and enter a conviction. I would remit the case to the trial judge to impose a fit sentence.

The Background Facts

6The circumstances surrounding the offence charged exert little influence on the issues joined by the parties on appeal. A brief recapture of some features of the procedural history of the case will be adequate for our purposes.

The charge

7In the early morning of April 15, 2007, a police officer stopped the vehicle Matthew Labadie (the "respondent") was driving. Because of the manner in which the respondent was driving, and his condition when the officer approached him, the [page101] officer made a proper approved screening device demand. The respondent blew into the device: it registered a "fail" reading.

8The officer transported the respondent to the local detachment. After Canadian Charter of Rights and Freedoms advice and an unsuccessful attempt to speak with counsel of choice, the respondent spoke to duty counsel before providing two breath samples in response to a proper demand. Both readings exceeded 80 mg of alcohol in 100 ml of blood.

9The respondent was charged with operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. The prosecutor chose to proceed by summary conviction.

The trial proceedings

10The prosecutor adduced evidence from the arresting officer and the qualified technician who administered the Intoxilyzer test to the respondent. The respondent sought exclusion of some of the evidence on the ground of constitutional infringement, but the trial judge dismissed the application.

Proof of blood-alcohol concentration

11To prove the respondent's blood-alcohol concentration at the time of his apprehension and driving, the prosecutor relied upon the presumption of identity in s. 258(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

12The respondent challenged the applicability of the presumption. Trial counsel for the respondent submitted that the evidence of the qualified technician, Prov. Cst. Keller, failed to satisfy the condition precedent of s. 258(1)(c)(iii) because it did not demonstrate that the sample was provided directly into an approved instrument. Thus, counsel said, it was not a "proper sample" of the respondent's breath.

13Trial counsel for the respondent was mistaken about the evidence of the qualified technician. Prov. Cst. Keller testified:

. . . and then he provided a proper sample, directly into the mouth piece which goes in, directly into the external breath tube of the instrument.

14She was not cross-examined on this aspect of her testimony.

The dismissal of the charges

15The trial judge held that the prosecutor had failed to establish beyond a reasonable doubt that the breath samples provided by the respondent had been received "directly into an approved instrument", as required by s. 258(1)(c)(iii) of the Criminal Code. This evidentiary shortfall deprived the prosecutor [page102] of the presumption of identity in s. 258(1)(c). In the absence of evidence of the blood-alcohol concentration of the respondent when he was apprehended and operating his motor vehicle, the trial judge dismissed the charge on the basis of this "very small technicality".

The notice of summary conviction appeal

16The Attorney General appealed the respondent's acquittal to the Superior Court of Justice. The right of appeal invoked was s. 813(b)(i) of the Criminal Code, which permits the Attorney General to appeal from an order that dismisses an information. The single ground of appeal advanced was phrased in these terms:

1. That the learned trial Judge, miscomprehended [sic] the evidence of Cst. Sherri Keller in respect to the legal requirement of the type of breath sample that was provided.

17The remedy sought on the summary conviction appeal was an order allowing the appeal, setting aside the dismissal of the information and entering a conviction of the offence charged.

The positions of the parties on the summary conviction appeal

18The factum of the Attorney General as the appellant in the summary conviction appeal court recited the issues and the order requested. However, it did not include submissions about the scope of the appeal court's jurisdiction or the court's authority to enter a conviction on an appeal from acquittal on grounds involving questions of fact.

19The respondent did not dispute the right of the Attorney General to appeal under s. 813(b)(i) on grounds involving questions of fact. But, according to the respondent, to succeed on factual grounds, the Attorney General had to establish that the verdict rendered at trial was unreasonable. The only remedy available where an acquittal is unreasonable is a new trial. The summary conviction appeal court may only enter a conviction where the error made at first instance is an error that involves a question of law alone.

The decision of the summary conviction appeal judge

20The summary conviction appeal judge found that the trial judge had misapprehended the evidence of the qualified technician. Contrary to the trial judge's finding, there was evidence that the respondent provided a proper breath sample directly into the approved instrument. The summary conviction appeal judge concluded: [page103]

The trial judge's finding to the contrary, his finding that Constable Keller had not used the word "directly," is plainly wrong, and constituted a palpable error in his assessment of the facts. To the extent that the trial judge's verdict rests upon this erroneous finding, it is unreasonable, and cannot be permitted to stand.

21The summary conviction appeal judge later turned to the issue of remedy. He expressed his conclusion on this issue in these terms:

In the result, therefore, the Crown's appeal is allowed. The decision of the trial judge acquitting Mr. Labadie is set aside. The case is remitted to the trial judge to reconsider his verdict in light of my finding that he inaccurately referred to the testimony of Constable Keller.

The Ground of Appeal

22The Attorney General applies for leave to appeal from the decision of the summary conviction appeal judge. The ground of appeal on which leave to appeal is sought alleges that the summary conviction appeal judge erred in law by remitting the case back to the trial judge to reconsider his verdict.

Analysis

23This application for leave to appeal and appeal are governed by s. 839(1)(a) of the Criminal Code. As a necessary first step, we must determine whether this is a case in which leave to appeal can and should be granted.

The threshold issue: leave to appeal

The governing principles

24Appeals to this court in summary conviction proceedings are not as of right or unrestricted in the nature of grounds that may be advanced. Section 839(1) controls. Where the first summary conviction appeal was taken under s. 813 and decided under s. 822, s. 839(1)(a) governs. Leave to appeal must be granted. The ground of appeal must involve a question of law alone.

25Despite the standardless sweep that the language of s. 839 displays, the resident discretion is not unbounded. In the end, the discretion must be exercised in the interests of justice. Yet, no single word formula can embrace every case in which the interests of justice warrant leave to appeal.

26Two factors occupy a prominent position in decisions about leave to appeal. The first is the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province. And the second, is the strength of [page104] the proposed appeal: R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.), at para. 30. Leave to appeal is granted sparingly: R. (R.), at para. 37.

27Where the issues raised in the proposed appeal have a significance that extends beyond the peculiar circumstances of the case in which they arise, we may grant leave to appeal even if the merits of the appeal are not strong. On the other hand, where the merits of the appeal appear very strong, we may grant leave to appeal despite the lack of any general significance or transcendant importance: R. (R.), at para. 37.

The principles applied

28This is a case in which leave to appeal should be granted. Both factors favour it.

29The issue raised relates to the appellate jurisdiction of the summary conviction appeal court in appeals taken by the Attorney General under s. 813 from dismissals of informations at trial in summary conviction proceedings. This issue transcends the peculiar facts of this case and is of significance to the general administration of criminal justice. The ground involves a consideration of the scope of appellate jurisdiction, more specifically, the effect of the referential incorporation by s. 822(1) of ss. 683-689 of Part XXI of the Criminal Code as the dispositive authority of summary conviction appeal courts on appeals under s. 813.

30And second, as the respondent acknowledges, the proposed ground of appeal has merit.

The availability of the remedy granted

31The summary conviction appeal judge allowed the appeal of the Attorney General, set aside the order dismissing the charge contained in the information and remitted the case to the trial judge to reconsider his verdict in light of his misapprehension of the evidence.

32To determine whether the remedy the Attorney General seeks here, entry of a conviction, should be granted, it is necessary first to determine whether the order made by the summary conviction appeal judge was a remedy he had the authority to grant.

The positions of the parties on appeal

33The parties share common ground that the order made by the summary conviction appeal judge, remitting the case to the trial judge, was made without jurisdiction. They submit that on appeals taken under s. 830, s. 834(1)(b) expressly authorizes the appeal court to remit the case to the trial court. But on appeals [page105] under s. 813, of which this was one, neither s. 822(1), nor the provisions of Part XXI that it incorporates by reference, make this remedy available.

The governing principles

34In appeals taken under s. 813(b)(i) from an order dismissing an information in summary conviction proceedings, the dispositive authority of the appeal court resides in s. 822(1) of the Criminal Code. Rather than expressly conferring dispositive authority on the appeal court, as s. 834 does for appeals taken under s. 830, s. 822(1) incorporates some, but not all, of the provisions of Part XXI that govern disposition of indictable appeals to the Court of Appeal. None of the incorporated provisions of Part XXI, in express terms or by necessary implication, permit the summary conviction appeal court, on an appeal under s. 813, to remit the case to the trial court along with the opinion of the appeal court.

35The authorities confirm the absence of any jurisdiction in appeal courts to remit a case to the trial court, together with the opinion of the appeal court, in appeals taken under s. 813 and decided under s. 822(1): R. v. Wilson, 1993 2875 (BC CA), [1993] B.C.J. No. 2427, 86 C.C.C. (3d) 145 (C.A.), at pp. 162-63 C.C.C.; R. v. Wilcox, 2001 NSCA 45, [2001] N.S.J. No. 85, 192 N.S.R. (2d) 159 (C.A.), at para. 128; and R. v. Kelly, 2002 NSCA 164, [2002] N.S.J. No. 583, 243 N.S.R. (2d) 201 (C.A.), at para. 10.

The principles applied

36The parties have it right. In appeals under s. 813(b) of the Criminal Code, the summary conviction appeal court has no authority under s. 822(1), for that matter or otherwise, to remit the case to the trial court for further consideration together "with the opinion of the appeal court". Section 822(1) contains no express provision that authorizes this remedy. Likewise, the incorporated sections of Part XXI include no such authority.

37The order remitting the case to the trial judge was made without jurisdiction and must be quashed. The more difficult question is what remedy should have been granted. That inquiry leads to another that requires examination of the nature of the error that must be established in appeals by the Attorney General from a dismissal of information in summary conviction proceedings.

The nature of the error and the available remedies

38To situate the discussion that follows in its proper context, it is helpful to recall the ground upon which the appeal of [page106] the Attorney General was based and the nature of the errors found by the summary conviction appeal judge.

The reasons of the summary conviction appeal judge

39The notice of appeal filed by the Attorney General alleged a single ground of appeal: that the trial judge "miscomprehended [sic] the evidence of Cst. Sherri Keller in respect of the legal requirement of the type of breath sample that was provided". The agent of the Attorney General did not characterize the error as one of fact, law, or mixed fact and law.

40The summary conviction appeal judge identified the error of the trial judge as finding that Prov. Cst. Keller had not said that she had received the respondent's breath sample directly into an approved instrument. In fact, the officer had given the evidence, which is a necessary condition precedent to the admissibility of the certificate and reliance on the presumption of identity.

41The summary conviction appeal judge characterized the trial judge's finding as "plainly wrong" and a "palpable error in his assessment of the facts". In the result, the summary conviction appeal judge concluded that the verdict was unreasonable and could not stand.

The positions of the parties on appeal

42For the appellant, Mr. Friesen submits that the summary conviction appeal judge erred in the remedy he ordered, but not otherwise. The trial judge's misapprehension of evidence led him to a finding that the conditions precedent to the operation of the presumption of identity had not been satisfied. In the result, the trial judge had no evidence of the blood-alcohol concentration of the respondent at the time he was operating the motor vehicle. But for this error, Mr. Friesen continues, the trial judge would have convicted the respondent.

43Mr. Friesen says that the summary conviction appeal judge had two remedies that he could have granted once having found the error made by the trial judge: order a new trial or enter a conviction. In the circumstances, Mr. Friesen urges, the only appropriate remedy was to enter a conviction. But for the error, the prohibited blood-alcohol concentration would have been proven by the operation of the presumption of identity. With the error corrected, a conviction should be entered here and the case remitted to the trial judge for sentencing.

44For the respondent, Mr. Miller is contrary minded. He acknowledges that the Attorney General has a right of appeal under s. 813(b)(i) on grounds that involve questions of fact or of [page107] mixed fact and law. However, to succeed on grounds involving questions of fact, Mr. Miller submits, the Attorney General must demonstrate that the verdict was unreasonable or was unsupported by the evidence. But, absent a shift in the onus of proof, an acquittal cannot be unreasonable or unsupported by the evidence because of the enduring effect of the presumption of innocence.

45Mr. Miller further submits that even if a summary conviction appeal court can quash an acquittal as a result of a factual error, whether an error in making a finding of fact or in failing to make a finding of fact, it cannot enter a conviction. A conviction can only be entered where all the required findings have been made and, by definition, they are absent in such cases.

46As a final alternative, Mr. Miller says that even if an appeal court has the authority to enter a conviction on an appeal based on an issue of fact, the authority is discretionary and should only be exercised in the clearest of cases, of which this is not one. He submits that the appeal should be dismissed.

The governing principles

47Determination of this appeal engages consideration of several related issues. The first has to do with the scope of the right of the Attorney General under s. 813(b)(i) of the Criminal Code to appeal a dismissal of an information on grounds involving or limited to questions of fact. The second relates to the remedies available to the summary conviction appeal court, and this court, on appeals by the Attorney General under s. 813(b)(i). The third is concerned with the availability in the circumstances of the precise remedy sought -- entry of a conviction.

Appeals by the Attorney General under s. 813(b)(i)

48Section 813(b)(i) gives the Attorney General a right of appeal to the "appeal court" from an order dismissing an information in summary conviction proceedings.

49Unlike other provisions conferring appellate rights, in both indictable and summary conviction proceedings, s. 813(b) (i) neither specifies the grounds upon which the appeal may be taken, nor limits those grounds. Compare, for example, ss. 675(1)(a), 676(1)(a) and 830(1) of the Criminal Code. In other words, s. 813(b)(i) does not, by its terms, restrict the grounds upon which appeals may be taken under its auspices, or distinguish among them, as, for example, by requiring that leave to appeal be granted for some grounds but not others.

50The unqualified language that appears in s. 813(b)(i) compels the conclusion that an appeal by the Attorney General [page108] from dismissal of an information in summary conviction proceedings may be based on grounds of fact, mixed fact and law, or law alone. The authorities confirm that the Attorney General has a right of appeal under s. 813(b)(i) on grounds involving questions of fact alone: R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 1987 171 (ON CA), 58 O.R. (2d) 737, [1987] O.J. No. 178 (C.A.), at p. 768-69 O.R.; R. v. Multitech Warehouse (Manitoba) Direct Inc., 1995 6261 (MB CA), [1995] M.J. No. 285, 102 Man. R. (2d) 141 (C.A.), at p. 149 Man. R.; R. v. Ash, 1990 6500 (NL CA), [1990] N.J. No. 55, 81 Nfld. & P.E.I.R. 1 (C.A.), at para. 51; and R. v. Medicine Hat Greenhouses Ltd., 1981 ABCA 114, [1981] A.J. No. 895, 26 A.R. 617 (C.A.), at para. 30.

51No controversy exists about the right of the Attorney General to appeal under s. 813(b)(i) on grounds that involve a question of law alone, or on grounds that involve questions of mixed law and fact. No closed list exists of what constitutes a question of law alone, but it is reasonable to conclude that questions of law alone take in, but are not confined to, issues involving the admissibility of evidence.

Appellate authority under s. 822(1)

52Rights of appeal are inextricably linked to appellate remedies. See, for example, s. 686(1)(a) and 686(1)(b)(iii) of the Criminal Code. Sometimes, however, gaps exist and no specific remedies are provided. For example, s. 686 contains no remedies for successful appeals by the Attorney General under either s. 676(1)(b) or s. 676(1)(c) of the Criminal Code.

53Section 822(1) defines the authority of the summary conviction appeal court on appeals under s. 813. The mechanism used for this purpose in s. 822(1) is an incorporation by reference of the powers of the Court of Appeal on indictable appeals. The incorporated provisions include s. 686, except s. 686(5).

54The only remedial provision in s. 686 directly applicable to appeals from acquittal is s. 686(4). Where the appeal from acquittal is successful, s. 686(4) authorizes the Court of Appeal to make either of two consequential orders: a new trial or, in some instances, entry of a conviction.

55Inclusion of the qualifier, "but for the error in law", in s. 686(4)(b)(ii) serves as a reminder that appeals by the Attorney General from acquittals in indictable proceedings are limited by s. 676(1)(a) to "any ground of appeal that involves a question of law alone".

56The referential incorporation of s. 686(4) by s. 822(1) yields less than a perfect match. To be more specific, the qualifier, "but for the error in law", in s. 686(4) seems markedly [page109] unsuited to the disposition of appeals that are not restricted to questions of law alone.

57The referential incorporation of s. 686(4) by s. 822(1) is subject to the ubiquitous and inscrutable qualifier "with such modifications as the circumstances require" that tags along at the end of the subsection. The current qualifier replaces the former favourite, "mutatis mutandis".

58In R. v. Antonelli, 1977 405 (BC CA), [1977] B.C.J. No. 1127, 38 C.C.C. (2d) 206 (C.A.), the British Columbia Court of Appeal considered the meaning to be attributed to the (then) qualifier "mutatis mutandis" in the predecessor to s. 822(1). There, as here, the summary conviction appeal had been argued on a ground of fact. The summary conviction appeal judge entered a conviction. On further appeal to the British Columbia Court of Appeal, the appellant argued that the referential incorporation of s. 613(4), which is now s. 686(4), limited the Attorney General's right of appeal in summary conviction proceedings under what is now s. 813(b)(i) to questions of law alone. The British Columbia Court of Appeal disagreed. Farris C.J.B.C. concluded, at pp. 211-12 C.C.C.:

The incorporating section, s. 755(1) [now s. 822(1)], qualifies its absolute incorporation with the words mutatis mutandis. They mean, of course, "with the necessary changes in points of detail" (see Jowitt's Dictionary of English Law, 2nd, ed. (1977)). It seems to me that a necessary change which must be made in s-s. (4) when it is applied to summary conviction appeals is the striking out of the words "but for the error in law". Those words are a necessary part of the section as it applies to appeals in proceedings by way of indictment because of the application of s. 605(1)(a) restricting the Crown to appeals on questions of law alone. However, as has already been pointed out, s. 605(1)(a) does not apply to appeals in summary conviction matters and the words "but for the error in law" are thus irrelevant in that context.

59In Ramos, Martin J.A. was "inclined to agree with the reasoning of the British Columbia Court of Appeal in R. v. Antonelli", but found it unnecessary to express a final opinion on the issue since the trial court in Ramos had also made errors of law: Ramos, at p. 771 O.R.

60Some courts of appeal, which have acknowledged the Attorney General's right of appeal under s. 813(b)(i) on grounds involving questions of fact, have held that to succeed on appeal the Attorney General must demonstrate that the acquittal was unreasonable: R. v. Gross, 2001 MBCA 175, [2001] M.J. No. 473, 160 Man. R. (2d) 111 (C.A.), at para. 16; Multitech, at p. 149 Man. R.; R. v. Hewlin, 1999 NSCA 54, [1999] N.S.J. No. 70, 174 N.S.R. (2d) 93 (C.A.), at paras. 14-16. It may be open to doubt, however, whether an acquittal based on a reasonable doubt can be unreasonable: Hewlin, at para. 15; R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, at p. 610 S.C.R.; [page110] R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, at paras. 32-33.

Entry of convictions on appeals from acquittal

61Section 686(4)(b)(ii) authorizes a court of appeal in indictable appeals, thus a summary conviction appeal court, to enter "a verdict of guilty" on an appeal from acquittal. The court is entitled to enter a finding of guilty of the offence of which the court concludes the respondent should have been found guilty, but for the error of law committed by the trial judge. The sub-paragraph requires that there be a nexus between the error of law and the verdict of acquittal. There must be a reasonable degree of certainty that the verdict would have been different without the error, and that the verdict would have been a finding of guilt: R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, [1996] S.C.J. No. 61, at para. 32. Apart from the error, all the findings of fact necessary to support a finding of guilt must have been made, explicitly or by necessary implication, or not be in dispute: R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345, [1989] S.C.J. No. 87, at pp. 354-55 S.C.R.; Audet, at para. 31.

The principles applied

62The application of the governing principles to the error made by the trial judge satisfies me that this is a case in which the appeal should be allowed, the order remitting the case to the trial judge set aside, the order setting aside the dismissal of the charge contained in the information affirmed and a conviction entered. My reasons for this disposition follow.

63The summary conviction appeal judge characterized the trial judge's error as a palpable error of fact that led to an unreasonable verdict. I agree with the summary conviction appeal judge that the trial judge misapprehended the evidence of Prov. Cst. Keller. I agree that the error was palpable. But I would not characterize the impact or effect of the error in the same way as did the summary conviction appeal judge.

64In my view, a more apt characterization of the nature of the trial judge's error is that he erred in law in failing to apply the presumption of identity to the uncontroverted evidence of Prov. Cst. Keller. His misapprehension of her evidence led the trial judge to conclude that the condition precedent to the operation of the presumption contained in s. 258(1)(c)(iii) had not been satisfied. The evidence of Prov. Cst. Keller satisfied this requirement. She was not cross- examined on this issue. The presumption of identity was engaged, and the blood-alcohol [page111] concentration was established as exceeding 80 mg of alcohol in 100 ml of blood.

65The trial judge found all the other essential elements of the offence charged had been established beyond a reasonable doubt. But for his error in misapprehending the evidence of Prov. Cst. Keller, which led directly to his failure to apply the presumption of identity on which the prosecutor relied to prove the prohibited blood-alcohol concentration, the trial judge's verdict would not have been the same. Instead of a dismissal of the charge contained in the information, the trial judge would have entered a finding of guilt.

Conclusion

66Section 839(2) incorporates the provisions of ss. 673-689 of the Criminal Code in summary conviction appeals to this court under s. 839(1)(a), with such modification as the circumstances require. The underlying error at trial was an error of law, a failure to apply an applicable statutory presumption. But for that error, the verdict would have been different. As indicated above, I would enter that verdict here.

67For these reasons, I would grant leave to appeal and allow the appeal to the extent of setting aside the order of the summary conviction appeal judge remitting the case to the trial judge and, in its place, enter a verdict of guilty and remit the case to the trial judge for imposition of a fit sentence.