Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
Ravindra Jagernauth
Judicial Officer and Counsel
Before: Justice G.P. Renwick
Heard on: 10 and 11 April 2019
Reasons for Judgment released on: 11 April 2019
Counsel:
- A. Nigro — counsel for the Crown
- B. Brody — counsel for the defendant Ravindra Jagernauth
Introduction
1This was a routine trial of a driving with an excess blood alcohol concentration ("over 80") charge. The Defendant challenged the admissibility of the results of his evidential breath sampling by seeking Charter relief under ss. 8, 9, and 24(2). Earlier today, I ruled that although there was a violation of ss. 8 and 9 of the Charter, the breaches were technical and did not require the exclusion of reliable evidence proffered to prove the Defendant's blood alcohol concentration ("BAC") at the time of the alleged offence.
2The sole issue raised in this trial is whether the prosecution can rely upon the presumption of identity found within s. 258(1)(c) of the Criminal Code after the coming into force of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 ("Act to amend"), which repealed s. 258 as of 18 December 2018.
3The Defendant relies heavily upon Justice Burstein's decision in R. v. Shaikh, 2019 ONCJ 157 to support the argument that Parliament's repeal of the former drink driving regime effectively repealed the evidentiary short-cut permitting the prosecution to rely on the BAC at the time of breath sample testing to prove the BAC at the time of driving.
4The prosecution relies upon the Supreme Court's decision in R. v. Ali, [1990] 1 S.C.R. 221 and R. v. Hiltschuk, [2019] O.J. No. 1015 (C.J.) to defend the survivability of the presumption of identity for offences alleged under the former legislation and tried after the new provisions came into effect.
Discussion
5Justice Burstein's decision is careful, thorough, and well-reasoned. It is largely premised on His Honour's view that s. 14 of the Act to amend is unambiguous. Section 14 of the Act to amend reads:
The heading before section 249 and sections 249 to 261 of the Act are repealed.
6According to the court in Shaikh, where there is no legislative ambiguity, courts are not permitted to read down the express words of new legislation in order to continue to breathe life into a repealed evidentiary short-cut. The court's view is clearly stated:
In my view, the words in s. 14 of the Act to amend are not reasonably capable of more than one meaning: "... sections 249 to 261 of the Act are repealed". Nor is there any ambiguity in s. 52 of the Act to amend as to when s. 14 came into effect -- December 18, 2018. [1]
7The court in Shaikh distinguishes the Supreme Court decision upon which the prosecution relies because:
Unlike in Ali, giving immediate effect to Parliament's express repeal of s. 258 would not prevent the Crown from effectively prosecuting existing "over 80" charges. In the absence of a presumption of identity, the Crown can still effectively prove its case on the strength of a certificate of qualified technician (admissible pursuant to the new s. 320.31(1) in the Act to amend) combined with the extrapolation opinion of a toxicologist. The requisite opinion evidence can readily be presented by a routine report attached to an affidavit: see s. 657.3(1) of the Code. Other than the need to obtain that one additional document, the potential added complexity of prosecuting existing "over 80" charges in the absence of the s. 258 presumption of identity would be entirely manageable in the vast majority of transitional cases. In the result, I am unable to conclude that the absence of a presumption of identity for the prosecution of the remaining transitional "over 80" cases would lead to "absurd" results, certainly not to the extent that I feel compelled to ignore the plain and simple words of the provisions in the Act to amend which have expressly repealed s. 258 of the Code as of December 18, 2018. [2]
8In Ali, the legislative amendment at issue put at risk all transitional prosecutions begun under the former legislation and not completed. If the original requirements of a single breath sample were replaced by the amendment requiring two breath samples there was no way to prove the over 80 offences allegedly committed before the passage of the amendments but not completed by that time.
9The Supreme Court discussed the exigencies of that reality:
…it is apparent that the new s. 237 cannot in fact operate retrospectively. When only one sample of breath has been taken because only one was required and could be demanded at the time, the law cannot make it possible for two samples to have been taken. The retrospective operation of the new s. 237 which has been adopted by the Court of Appeal would effectively result in neither the new nor the old section being operative during the period when the new s. 237 is supposedly intended to operate retrospectively. This can hardly have been the result that was intended by Parliament. Ever since the new offence now described in s. 236 was created in 1969 by the Criminal Law Amendment Act, (1968-69 (Can.), c. 38, s. 16), a special procedure has been available so as to ensure the effective investigation and punishment of this offence. It is indeed apparent that s. 236 cannot, in practice, be effectively enforced in the absence of provisions similar to those now found in ss. 235 and 237. I have no reason to believe that Parliament intended, when passing the Amendment Act to allow for an interval during which the prosecution of offences already committed would be frustrated because the rules contained in ss. 235 and 237 would not be available for the enforcement of s. 236. [citations omitted]
10In the current situation, the wholesale prosecution of outstanding charges is not frustrated. Prosecutions can be adjourned in order to arrange for toxicologists to testify or for the preparation of their reports (although I am much less optimistic than my colleague Justice Burstein appears to be that these would easily be received without the attendance of proposed experts for cross-examination). Though the effect of this can hardly be said to have simplified the prosecution of outstanding cases, it is not so onerous as to frustrate them completely.
11Moreover, Parliament specifically turned its mind to the creation of a new presumption of accuracy. It is somewhat unrealistic to imagine that the legislators simply forgot about the presumption of identity and the consequences of a retrospective repeal of s. 258(1)(c) upon outstanding prosecutions.
12The prosecutor relied upon R. v. Hiltschuk to support its contention that the presumption of identity has survived the repeal of s. 258(1)(c) until all outstanding prosecutions have completed. This decision does not appear to have come to the court's attention in Shaikh.
13With the greatest of respect, the discussion of this issue in Hiltschuk is brief and the decision offers little insight respecting why the court came to the conclusion it did. In fairness, that court appears to have been one of the first to have been presented with this issue, some three weeks after the Act to amend was proclaimed in effect.
14Courts must always bear in mind the division of labour as between the legislative and judicial branches of government:
A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. [3]
15In this case, there is no doubt that Parliament is properly empowered to devise a new regime to "simplify" the investigation and prosecution of drink driving offences. It has chosen to end the applicability of the presumption of identity, which has become an unnecessary appendage in light of the new excess BAC offence.
16Though the effect of the Act to amend is concerning and may cause some inconvenience to prosecutions underway, the challenges are not insurmountable or cataclysmic. Largely on the basis of the careful reasons in R. v. Shaikh, I find that the prosecution can no longer rely upon the presumption of identity in this trial.
17Perhaps anticipating this result, the prosecutor invited me to follow R. v. Kisten, [2015] O.J. No. 6918 (C.J.) to perform a simple read-back calculation of the Defendant's BAC based upon his breath testing results and the standard rate of alcohol elimination.
18I will make no comment on whether or not I find that case helpful. I note that it has only been judicially considered or mentioned four times in the few years since the judgment was rendered, always by courts of concurrent jurisdiction.
19However, if I had felt compelled to accept the logic of that decision, I find that a key assumption (there had been no significant alcohol consumption immediately prior to driving), cannot be made on the basis of the evidence before me. When first questioned about his consumption of alcohol that evening, the Defendant told the officer he had consumed "approximately two beers, approximately five minutes ago." That is some evidence which disturbs a prerequisite assumption to perform the calculation sought.
Conclusion
20For all of these reasons, although I am satisfied that the Defendant had an excessive BAC when he provided breath samples into the approved instrument (140 mgs of alcohol in 100 mL of his blood), I am not satisfied beyond a reasonable doubt of an impermissible BAC at the time of driving.
21I find Mr. Ravindra Jagernauth not guilty of this offence.
Released: 11 April 2019
Justice G. Paul Renwick
Footnotes
1Shaikh, supra, at para. 22.
2Ibid., at para. 25.
