Court File and Parties
Ontario Court of Justice
Central West Region
Between:
Her Majesty the Queen
— and —
Mayootharan Sivalingam
Before: Justice Richard H.K. Schwarzl
Heard on: February 28, and April 3, 2019
Reasons released on: April 17, 2019
Counsel:
Mr. Robert Fettery, Q.C., for the Crown
Mr. Robert Tomovski, for the Defendant
SCHWARZL, J.:
1.0: INTRODUCTION
1The Defendant, Mayootharan Sivalingam, stands charged with driving a motor vehicle with excess blood alcohol. A trial was held in which two issues were raised. The first issue is whether the Defendant's rights to counsel as guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms ("Charter") was violated by the police and, if so, whether excluding the breath test results is an appropriate remedy. The second issue is whether the prosecution should be permitted to rely on the presumption of identity as set out in section 258(1)(c) of the Criminal Code of Canada which was repealed after the investigation, but before the trial. If not, the prosecution would have to fail because no expert evidence was led extrapolating (or "reading back") the breath sample results to the time of driving.
2The prosecution led evidence from P.C. Carey Widbur ("Widbur"), who was both the investigating officer and the qualified breath technician. The defence called no evidence on either the Charter application or on the trial.
3I will deal with the rights to counsel issue first, then the statutory presumption issue second.
2.0: FACTS NOT IN DISPUTE
4The following facts are not in dispute.
5On March 17, 2018 Widbur was on patrol in the Town of Shelburne. At 9:45 p.m. he noticed that a commercial van driven by the Defendant left a gas station lot by driving over the curb, and not through the driveway. Widbur followed the van into a residential neighbourhood where it drove slowly before coming to a stop. Widbur pulled beside the driver's window and saw the Defendant using a cellphone. He decided to caution the driver about using a handheld device.
6At 9:47 p.m. the officer spoke to the Defendant and detected the strong odour of an alcoholic beverage from inside the van. Upon exiting the van at the officer's direction, the Defendant's breath was observed to smell of alcohol. Widbur made a screening demand. Defendant complied and failed the test. He was arrested at 9:58 p.m. for driving with excess blood alcohol.
7The Defendant provided two suitable samples of his breath into an approved instrument. The first sample was received and tested at 11:09 p.m. with a result of 147 milligrams of alcohol per one hundred millilitres of blood. The second sample was received and tested at 11:30 p.m. registering a blood alcohol concentration of 135 milligrams of alcohol per one hundred millilitres of blood. The breath test procedure was administered by Widbur, who is also a qualified breath technician.
8Tamil is the Defendant's native tongue. The Defendant always spoke to the officer in English and appeared to comprehend everything, although the officer sometimes used simple words and repetition.
9No expert evidence was called by the Crown regarding the breath test results, relying instead on the testimony and Certificate of Qualified Technician of P.C. Widbur.
3.0: THE RIGHTS TO COUNSEL ISSUE
3.1: Positions of the Parties
10The Defendant submits that Widbur violated his ability to adequately exercise his rights to counsel by steering him to Duty Counsel and by not providing a Tamil speaking lawyer. He submits that the breaches were serious and negatively affected his Charter protected interests. The Defendant submits that excluding the breath test results is an appropriate remedy.
11The Crown submits that the Defendant has failed to establish that it is more likely than not that his rights to counsel was violated. In the alternative, the Crown argued that even if the Defendant's rights to counsel was breached, the breath test results should not be excluded from the evidence.
3.2: The Evidence on the Issue
12After arresting the Defendant, Widbur read him the following at 10:04 p.m.:
"I am arresting you for Over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?"
13The Defendant told Widbur that he understood his rights. The officer agreed that he did not ask the Defendant after every sentence if he understood, but only after reading the entire recitation.
14At 10:05 p.m. Widbur read the primary caution to the Defendant. When asked if he understood the caution, the Defendant replied that he did.
15Immediately after giving the caution, Widbur then told the Defendant "Free. Lawyer. Private. Now." (FLPN). The Defendant responded by saying, "Tamil lawyer, please." The Defendant did not say he wanted to choose his own lawyer.
16Widbur did not use the FLPN statement of rights to counsel to the Defendant because of his accent. The officer always tells this to every detainee to whom rights to counsel are given, regardless of their first language. Although it is grammatically incorrect, the officer said that it is an easily understood and concise summary of one's right to a lawyer. Widbur stated that it is intended that the FLPN phrase is the clearest statement of rights to counsel. When challenged, the officer conceded that the phrase was open to interpretation in that someone could understand it to mean either a free lawyer or a private lawyer. He also agreed that he did not ask for the Defendant's interpretation of the phrase. Nor did the Defendant volunteer his understanding of the phrase.
17Widbur did not ask the Defendant if he had his own lawyer, nor did the Defendant say he had one.
18Widbur disagreed with a suggestion that he presented Duty Counsel as the only choice for the Defendant. On the subject of telling the Defendant he could have a "Free" lawyer the officer stated that in his experience many private counsel do not charge for a telephone consultation at the station.
19Widbur stated that had the Defendant asked any questions or raised concerns about rights to counsel he would have noted and answered them, but the Defendant did not make any comments or seek any clarification other than to request a Tamil lawyer.
20Widbur agreed that a record check indicated that the Defendant had never been charged before but he did not know if the Defendant had ever been detained or arrested so as to be given rights to counsel in the past. No evidence was led either way on this point.
21At 10:07 p.m. Widbur made a breath demand which the Defendant said he understood.
22Widbur then drove the Defendant to the police station, arriving at 10:12 p.m. at which time Widbur began booking the defendant. The booking procedure included the officer asking for personal information, asking about medical concerns, providing information to the prisoner that a privacy shroud was available if he wanted to use the washroom, information about the station being subject to audio/video recording, and a more thorough search. The Defendant responded in English and appropriately throughout the booking procedure.
23During the booking process, Widbur asked the Defendant "I will request the Tamil-speaking free lawyer. Is that OK?" to which the Defendant said that it was.
24There was a lawyer's directory at the station as well as internet access to legal information, neither of which the officer presented to the Defendant. The Defendant did not ask to search for a private lawyer.
25Although he sometimes had to repeat things to the Defendant, Widbur and the Defendant always spoke English with each other at the police station.
26After starting the approved instrument, Widbur called Duty Counsel at 10:21 p.m. In his message he said that he required a Tamil-speaking lawyer or at a minimum a Tamil interpreter to assist the Defendant.
27At 10:40 p.m. Duty Counsel, Ms. Taylor, called the station. Widbur stressed to Ms. Taylor the need for a Tamil-speaking lawyer or at least a Tamil interpreter. Duty Counsel told the officer that she didn't speak Tamil but that she was going to patch an interpreter on a conference call as soon as they were on the line. Widbur said, "We can wait until the interpreter is available."
28Widbur then escorted the Defendant into the room where Duty Counsel was on the phone. On the way into the room, Widbur stated, "English-speaking lawyer will get a Tamil interpreter to assist you." He then left the room and turned on a white-noise device to ensure privacy. Widbur testified that absent any complaint by the Defendant, access to an English-speaking lawyer aided by a Tamil interpreter appeared sufficient in the circumstances.
29At 10:59 p.m. the Defendant was off the phone. Widbur asked him if he had spoken to the lawyer to which the Defendant replied, "Yes."
30Prior to commencing the breath test procedure, Widbur asked "Was your call with the lawyer using Tamil interpreter OK?" The Defendant said "Yes." Widbur asked this question because he is aware that sometimes the quality of interpretation can be a problem. Widbur then reminded the Defendant that if he wanted to speak a lawyer in private at any time, all he had to do was say so and he would be given that opportunity right away. The Defendant said he understood.
31The Defendant (a) never provided the name of any lawyer, (b) did not ask to look for his own lawyer, (c) did not ask to speak with a third party to assist him in accessing private counsel, (d) never expressed dissatisfaction with Duty Counsel and (e) never asked to speak with any lawyer after entering the breath room.
32There is no evidence that the Defendant had a specific lawyer in mind, whether or not he failed to provide a particular lawyer's name. The police did not ask if he had a lawyer he wanted to call.
3.3: Legal Principles
33This issue involves a consideration of the scope of the duty of police to provide a detainee with a reasonable opportunity to access a lawyer where the detainee has expressed a wish to get legal advice and where the police control the means of access to counsel.
34There is a growing body of Ontario Court of Justice decisions holding that where a detainee does not have a specific lawyer, the police have a duty to provide the detainee with both knowledge and use of tools - such as printed legal directories or the internet - to find his own lawyer before referring him to duty counsel. These case state that a failure by the police to do this is called "steering" or "funneling" to duty counsel and is unconstitutional. A non-exhaustive of such cases include R. v. Pangias, 2014 ONCJ 797; R. v. Maciel, 2016 ONCJ 563; R. v. Sakhareych, [2017] O.J. No. 5209; R. v. Ali, 2018 ONCJ 203; R. v. Ferose, [2018] O.J. No. 2431; R. v. Manuel, [2018] O.J. No. 2955; R. v. Kowalchuk, [2018] O.J. No. 5250; R. v. Fisk, [2019] O.J. No. 281; R. v. MacGregor, [2019] O.J. No. 384; and R. v. Gasiorek, [2019] O.J. No. 1112.
35However, there are also some cases from the Ontario Court of Justice which found that no such a duty exists: R v. Ruscica, 2017 ONCJ 864; R. v. So, [2019] O.J. No. 467; and R. v. Sillars, [2019] O.J. No. 603.
36This issue has does not seem to have been directly addressed by any appellate court at the time of my judgment herein.
37I agree with the Pangias/Maciel/Manuel line of cases to the extent that they may stand for the proposition that where the police do not allow a detainee to make his own calls or other inquiries in the exercise of his right to counsel, and there is a real likelihood that the detainee does not fully understand his right to counsel (emphasis added), the police have a duty to clarify to the detainee all his options including the right to speak to any lawyer he wants, a third party to get a lawyer, or duty counsel.
38However, to the degree that this line of cases creates a positive duty on the police to provide the detainee a list, or access, to lawyer-finding resources or tools in every case before calling duty counsel, I find that these cases run contrary to the well-established principles set out by appellate courts. In my view, the duty espoused in this line of cases would only be engaged in the situation where the detainee states that he wants to speak with a particular lawyer: R. v. Clarke, 2005 CanLII 15452 (ON CA) at ¶ 31-33. As Schreck, J stated while sitting as a Summary Conviction Appeal Court in R. v. O'Shea, [2019] O.J. No. 1178 (S.C.J.) at ¶ 40 "I am not prepared to say that s. 10(b) always imposes an obligation on the police to advise an individual of his or her right to contact an alternative counsel of choice. Nor am I prepared to say that it never does so. Whether it does or not will depend on the circumstances of the case."
39In light of the competing line of Ontario Court of Justice jurisprudence I rely on the following principles set out by binding appellate courts in addressing the duties of the police for implementing a detainee's right to counsel.
40First, where the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own: R. v. Wilding, 2007 ONCA 853; R. v. Vernon, 2015 ONSC 3943; R. v. O'Shea, [2019] O.J. No. 1178 (S.C.J.).
41Second, while police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 ¶ 46–67; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).
42Third, having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at ¶ 23–24, and 29; R. v. Antoninas, 2014 ONSC 4220 at ¶ 93; and R. v. Vernon, supra.
43Fourth, The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross, 1989 CanLII 134 (SCC); R. v. Littleford, 2001 CanLII 8559 (ON CA); R. v. Richfield, 2003 CanLII 52164 (ON CA); R. v. Clarke, 2005 CanLII 15452 (ON CA) at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).
44Fifth, where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston, 2004 BCCA 148; R. v. Antoninas, 2014 ONSC 4220; R. v. Cheema, 2018 ONSC 229 at ¶ 31; R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) at ¶ 25–28.
45Sixth, unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Cairns, 2004 CanLII 17588 (ON CA); R. v. Burley, 2004 CanLII 9437 (ON CA); R. v. Clarke, supra at ¶ 31-33; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.); R. v. Shoker, [2016] O.J. No. 4563 (S.C.J.).
46In the summary conviction appeal of R. v. Ferose, 2019 ONSC 1052 at ¶ 73 the Court provided a helpful digest on this issue:
In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield, 2003 CanLII 52164 (ON CA), R. v. Littleford, 2001 CanLII 8559 (ON CA), and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed [2006] O.J. No. 1023 (Ont. C.A.) and Durno J. in R. v. Antoninas, 2014 ONSC 4220, where a detainee:
(a) does not request specific counsel and/or such specific counsel is unavailable;
(b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;
(c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire; and
(d) does not claim any harm/prejudice as a result of the advice provided,
it is unlikely that any breach of the detainee's s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.
47It is also important to note that the burden of proof in establishing a breach of one's 10(b) Charter rights rests with the Defendant on a balance of probabilities because the police are deemed to have honoured those rights. The Defendant is not obligated to testify, but his failure to do so deprives the Court of direct evidence of how the Defendant perceived, or understood, his rights: R. v. Littleford, supra at ¶ 8; R. v. Ibrahim, [2016] O.J. No. 1199 (S.C.J.).
3.4: Application of Legal Principles to this Case
48The Defendant has failed to satisfy me that in the circumstances of this case that his rights to counsel were probably breached by the police. I come to this conclusion for the following reasons.
49Widbur provided the Defendant with the rights to counsel from his police card. The Defendant said he understood his rights.
50After Widbur paraphrased rights to counsel by saying "Free. Lawyer. Private. Now.", the Defendant replied "Tamil-speaking lawyer." One must consider what Widbur said and the Defendant's response in context. The FLPN phrase does not replace the full rights to counsel already given, but provides a succinct summary of them. In the full rights to counsel, the Defendant was clearly told he could speak with not only a free legal aid lawyer, but also with any lawyer he wished. There was no evidence, and no reason to think, that the Defendant felt restricted on unduly influenced in the exercise of his rights. The Defendant did not testify so it is impossible to know his state of mind about this. It would appear that when he invoked his right to counsel, the Defendant's priority was to receive legal advice in his native language, not who the lawyer was.
51In the station booking room, the officer stated, "I will request the Tamil-speaking free lawyer. Is that okay?" The Defendant replied, "Yeah." Again, there is no evidence that the Defendant did not understand that he could speak with any lawyer he wanted to and no reason to believe that he had no choice but to agree with the officer.
52When Widbur called Legal Aid, he said that he required either a Tamil-speaking lawyer or a lawyer assisted by a Tamil interpreter. When the English-speaking duty counsel called, the officer told the Defendant that the lawyer would get a Tamil interpreter to assist him. This was all done without protest or complaint by the Defendant.
53In the breath room, and after the Defendant spoke to duty counsel, Widbur asked the Defendant "Was your call with the lawyer using the Tamil interpreter okay?" to which the Defendant answered, "Yes."
54Widbur then told the Defendant that if he wanted to speak with a lawyer at any time, all he had to do was to let him know and he would be allowed to do so. The Defendant said he understood. The officer clearly did not limit access to counsel to only duty counsel.
55There is no evidence, and no reason to infer, that the assistance provided to the Defendant by the Tamil translator or by Duty Counsel was deficient in any way.
56Even though the police had a lawyer's directory and access to legal websites to find a lawyer, these were not offered to the Defendant because the officer thought that the Defendant was content with duty counsel. His belief was reasonable in the circumstances because the Defendant never asked to speak to a particular lawyer, he said it was okay to talk to duty counsel and he never complained about either the advice he got or who gave it. In these circumstances, if the Defendant had, or wanted to hire, a particular lawyer he was not reasonably diligent because he did not tell the officer. While it may have been reasonable for the officer to offer the lawyer's directory or the internet to the Defendant to search for a lawyer of his choice, or to call a third party, he had no legal obligation or duty to do so. I find that in these circumstances that the officer acted reasonably in assisting the Defendant to access legal advice.
57The Defendant never asked to speak to any lawyer in particular, other than one with the ability to communicate in Tamil. The use of a Tamil interpreter facilitated the Defendant's communication to get advice. There was no evidence and no reasonable inference to be drawn on the evidence that he was restricted or deprived in any way throughout his dealings with Duty Counsel.
58The Defendant got legal advice before participating in the breath test procedure and the police reminded him prior to the first test that he could talk again to any lawyer, any time. The Defendant understood but never sought such an opportunity. In the absence of any evidence to the contrary, it appears that he was content with the way in which his rights to counsel were exercised. The Defendant's failure to express a desire to speak with his own lawyer cannot result in a breach of his 10(b) Charter rights: R. v. Zohgaib, [2006] O.J. No. 1023 (C.A.).
59I find that the situation in this case complies with the test set out at paragraph 73 of the Ferose summary conviction appeal, supra, because (a) the Defendant did not request to speak with a particular lawyer and did not request to look for one; (b) he spoke to a lawyer in private; (c) he did not complain then or now about the advice he got; and (d) he did not claim any harm or prejudice as a result of the advice he received.
60For these reasons, I find that the Defendant has not demonstrated that it was more likely than not that the police breached his right to counsel.
61If I am wrong and his right to counsel was violated, I would not exclude the breath test readings in this case pursuant to section 24(2) of the Charter. Balancing the various factors described by the Supreme Court in R. v. Grant, 2009 SCC 32, I find that the exclusion of reliable breath sample evidence needed to establish the serious offence with which the Defendant is charged will do more harm than good to the administration of justice and that the reputation of the justice system would suffer if the breath sample evidence were excluded.
62First, if there was a breach, it was not at the serious end of the scale. Widbur acted in good faith throughout. He made real efforts to ensure that the Defendant got not just legal advice, but such advice in his first language. He also distilled the essence of the rights to counsel to a simple phrase. The Defendant made no efforts to be diligent in the pursuit of his rights. There was no suggestion of any systemic problems or attitudes of the police that would lead a reasonable person to think that the detainee in this case was treated unfairly. If there was a breach in this case the minimal seriousness of it does not favour exclusion of evidence: R. v. Du, 2009 CanLII 39783 (ON SC); R. v. Persaud, [2017] O.J. No. 1180 (O.C.J.); R. v. Reyes, 2018 ONCJ 56.
63Second, the impact on the Defendant's Charter protected rights was minimal thereby favouring inclusion of the evidence. The Defendant spoke to a lawyer before the breath test procedure and did not express any dissatisfaction with that advice. He had a legal obligation to comply with the valid breath demand made by the officer. The breath test procedure was minimally intrusive to the Defendant's privacy, bodily integrity, and basic dignity of the person: R. v. Jennings, 2018 ONCA 260 at ¶ 27–32.
64Third, and finally, there is a compelling societal interest in dealing with drinking and driving offences on their merits: R. v. Alex, 2017 SCC 37. Evidence of breath testing is highly reliable and necessary as part of the prosecution's case. This militates strongly in favour of inclusion.
65In sum, even if there was a breach of the Defendant's 10(b) Charter right, exclusion of the breath test results would inappropriate in the circumstances of this case.
4.0: THE STATUTORY PRESUMPTION ISSUE
4.1: Positions of the Parties
66The Defendant submits that when the law regarding driving offences changed in December 2018, the prosecution of offences under section 253(1)(b) of the Criminal Code was deprived of the evidentiary shortcuts provided by the earlier, but now repealed, sections of the Criminal Code. Specifically, the presumption of identity created by section 258(1)(c) of the Code was repealed. The old law presumed that the blood alcohol concentration at the time of testing was the same as the blood alcohol concentration at the time of driving. Without this presumption, the Defendant submits that the prosecution would have to lead expert opinion evidence from a forensic toxicologist to make a retrograde extrapolation ("read back") of the breath test results to the time of driving to see if the Defendant's blood alcohol concentration was over the legal limit when he drove as opposed to the time when his breath samples were tested.
67The prosecution submits that even though the old presumption of identity has been repealed, it still applies to excess blood alcohol trials of Over 80 charges that started after the law changed. They further submit that even if they cannot rely on the presumption of identity, there is evidence upon which I could find that the Defendant's blood alcohol concentration was over the legal limit at the time of driving.
4.2: Old Law vs. New Law
4.2.1 – General
68Effective December 18, 2018 Parliament revamped the entire driving offence portion of the Criminal Code. These changes were made by An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 ("the Act to amend"). Section 14 of the Act to amend states that sections 249 to 261 of the Criminal Code are repealed.
69Two aspects of the changes in the drink/drive laws are relevant to this case. First, the old charge involving driving with excess blood alcohol was replaced by a new offence. Second, changes were made to evidentiary shortcuts relating to charges of excess blood alcohol.
4.2.2 – Comparing the old and new excess alcohol offences
70Regarding the crime of driving with too much blood alcohol, a necessary starting point is to compare the old offence with the new one.
71Under the old law, it was a crime to be driving with more than 80 milligrams of alcohol per 100 millilitres of blood: section 253(1)(b), ("Over 80"). The focus of 253(1)(b) was on the person's blood alcohol concentration at the time of driving, proven by analyzing samples of the driver's blood or, more frequently, his breath.
72With the new law, it is an offence for a person to have more than 79 milligrams of alcohol per 100 millilitres of blood up to two hours after ceasing to drive: section 320.14(1)(b) ("Over 79"). The focus of section 320.14(1)(b) is the driver's blood alcohol concentration at the time of testing.
73In other words, the old offence required the evidence to look back in time to when the person drove or was in care or control of his motor vehicle, whereas the new offence does not. The new offence only crystallizes when the person's breath tests results are produced. This difference represents a profound transformation in approach to the offence of driving with too much alcohol.
4.2.3 – Comparing the old and the new evidentiary shortcuts
74It is also important to compare evidentiary shortcuts found in both the old and new laws. Whatever changes were made, it is clear that in both the earlier and new laws that Parliament created evidentiary shortcuts to make excess blood alcohol concentration trials as efficient but fair as possible. The presumptions are also designed to foreclose certain defences. Evidentiary shortcuts known as statutory presumptions of both accuracy and identity are found in the old and new laws.
75In both the old and new laws, Parliament created another evidentiary shortcut called a Certificate of Qualified Technician (repealed section 253(1)(g); current section 320.32(1) and (6)). The Certificate of Qualified Technician was, and is still, designed to allow the prosecution to avoid calling the qualified breath technician at the trial. Where one or both statutory presumptions do not apply, the qualified breath technician must testify.
(a) The Presumption of Accuracy
76One evidentiary shortcut is the presumption of accuracy. This means that breath test results produced by the approved instrument are presumed to accurately (or correctly) reflect the subject's actual blood alcohol concentration at the time of testing.
77Under the old law, the presumption of accuracy was found in sections 258(1)(c). That section provided that where breath samples were taken pursuant the conditions found in subsections 258(1)(c)(ii–iv) "…evidence of the results of the analyses so made is conclusive proof [of] the concentration of alcohol in the accused's blood … at the time when the analyses were made …" (emphasis added).
78Under the new law, the presumption of accuracy is found in section 320.31(1). That section provides that where enumerated conditions are satisfied, "…the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses are made …" (emphasis added).
79The new presumption of accuracy is essentially the same as under the old law, although the conditions under which the new presumption of accuracy applies are somewhat different from those of the old presumption of accuracy.
(b) The Presumption of Identity
80Another evidentiary shortcut is the presumption of identity. This means that the results of the breath tests are presumed to identify the blood alcohol concentration of the subject at the time of the offence.
81Under the old law, the presumption of identity was found in sections 258(1)(c) and (d.1). Section 258(1)(c) stated that "…evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood … at the time when the offence was alleged to have been committed …" (emphasis added). Thus, the old presumption of identity operated retrospectively because the offence is committed earlier, at the time of driving.
82With the new law, the presumption of identity regarding breath samples is found in sections 320.14(b) and 320.31(4). Given that the new offence is committed only when the person has excess blood alcohol at the time of testing, the presumption of identity is built into the definition of the offence itself: Legislative Summary of Bill C-46, Publication No. 42-1-C46E, revised July 24, 2018 (Library of Parliament). Under the new law, there is no need for a retrospective presumption of identity because the new offence is unconcerned about blood alcohol concentration at the time of driving.
83Therefore, the presumption of identity in the new law is very different from that in the old law.
4.2.4 – Repeal of old law and transitional provisions of the new law
84In passing the Act to amend, Parliament repealed sections 249 to 261, including section 258. That section was a compendium of procedure which provided in part for the old presumptions of accuracy and identity, as well as proceeding by the Certificate of Qualified Technician, and other evidentiary rules. The repeal of section 258 took effect on December 18, 2018 which was when the Act to amend came into.
85The Act to amend also provided at section 32(2) that the presumption of accuracy set out in the new section 320.31(1) of the Criminal Code "applies to the trial of an accused that is commenced on or after the day that [it] comes into force if the sample or samples to which the trial applies were taken before that day." In other words, the amending legislation directs that the new presumption of accuracy applies to any 253(1)(b) charge where the trial starts on or after December 18, 2018. This makes sense because the old and new presumptions of accuracy both result in conclusive proof of blood alcohol concentration at the time of testing where the conditions are met, proven by the Certificate of Qualified Technician or the qualified breath technician's trial evidence, or both.
86The Act to amend does not explicitly state whether the old presumption of identity applies to any 253(1)(b) trial started as of December 18, 2018. Nor does it tell us which, if any, presumption of accuracy applies to trials commenced but not completed before December 18, 2018.
4.3 – The issue defined
87The issue raised by the Defendant in this case concerns itself with the question of whether the old presumption of identity applies to his case that started after the new law came into force. Both parties agree that the new presumption of accuracy under section 320.31(1) applies to this trial and they further agree that there is evidence that allows the Crown to rely on that new presumption of accuracy.
88The Defendant submits that the Act to amend has clearly and without ambiguity eliminated the old presumption of identity that would have applied to Over 80 trials like this one but for the amendment repealing it. By repealing the presumption of identity in section 258, the Defendant submits that Parliament intended to require the Crown to prove the concentration of alcohol in his blood at the time of driving by means other than the Certificate of Qualified Technician and/or testimony of the qualified breath technician, unless there is some section of the new law that permits it, which there is not. The Defendant submits that Parliament made it clear for outstanding 253(1)(b) cases that expert opinion evidence is necessary to conduct a retrograde extrapolation of the breath test results to the time of driving. He argues (a) that since the old presumption no longer applies and (b) because there was no expert evidence of retrograde extrapolation of the breath test results led by the Crown, there is no admissible evidence of his blood alcohol concentration at the time of driving and therefore he ought to be acquitted. The Defendant relies entirely upon the decision of R. v. Shaikh, 2019 ONCJ 157.
89The prosecution submits that I should not be persuaded by the reasons set out in Shaikh. They submit that the now repealed presumption of identity continues to apply to any outstanding 253(1)(b) trial regardless of when the trial commenced. In the alternative, the Crown submits that I can, and should, do my own retrograde extrapolation to figure out the Defendant's blood alcohol concentration at the time of driving.
4.4 - Analysis
90After reviewing the careful and thorough reasons in Shaikh, and upon reading the able submissions in this case, I find that where, as here, an Over 80 trial started after the new law came into force that the old presumption of identity continues to operate alongside the new presumption of accuracy. In such matters, the Crown may rely on a Certificate of Qualified Technician made under section 320.32 or the testimony of the qualified breath technician or both, but are not required to call an expert to "read back" the blood alcohol concentration to the time of driving unless the Crown has failed to meet the preconditions set out in section 258(1)(c) or section 320.31(1). What follows are my reasons for coming to these conclusions.
91The Act to amend is ambiguous regarding the applicability of the old presumption of identity to outstanding Over 80 trials. The Act to amend repealed both old presumptions but then replaced one (accuracy) which applies only to trials started after the new law went into effect. The new offence contains within its definition a presumption of identity. Under both the old and new laws excess alcohol offences were, and are, subject to two presumptions: accuracy and identity. An ambiguity arises for it is impossible for the presumption of identity set out in 320.14(1)(b) to apply to 253(1)(b) because unlike the new offence, the old one requires a determination of blood alcohol concentration at a time before breath testing. In other words, the new presumption of identity cannot be applied to Over 80 cases retrospectively which make the law very unclear as to how to prove blood alcohol concentration at the time of driving.
92Having found a significant ambiguity in the new law, I turn to the intention of Parliament in amending the law. One of the key legislative goals common to the old and new legislation is the simplification of both the investigation and the prosecution of excess alcohol offences.
93The legislative summary set out at the start of the Act to Amend states:
Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances... and replaces them with provisions in a new Part of the Criminal Code that, among other things,
(a) re-enact and modernize offences and procedures relating to conveyances;
(b) authorize mandatory roadside screening for alcohol;
(c) establish the requirements to prove a person's blood alcohol concentration; and
(d) increase certain maximum penalties and certain minimum fines.
(emphasis added)
94The Preamble of the Act to Amend states, amongst other things, that it is "important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms" and that "it is important to simplify the law relating to the proof of blood alcohol concentration."
95The stated intent in the Act to Amend is consistent with the unchanging and decades-old intent of Parliament in such matters. As pointed out by the Supreme Court in R v. Ali, [1990] 1 S.C.R. 22, since the 1960s special procedures have always existed to ensure the effective investigation and prosecution of excess alcohol offences. The unavailability of those special procedures following an amendment would frustrate enforcement of pre-amendment offences. In Rawluk v. Rawluk, 1990 CanLII 152 (SCC), the Supreme Court noted at ¶ 36 that "It is trite but true to state that as a general rule a legislature is presumed not to depart from prevailing law "without expressing its intentions to do so with irresistible clearness" (Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, at p. 614)." In the Act to amend, Parliament has not expressed with irresistible clearness that the old presumption of identity should not apply to outstanding Over 80 offences.
96The new Over 79 offence does not have to look back in time, whereas the old Over 80 offence does. Both offences, however, are also concerned with the accuracy of the breath tests at the time of testing. Due to this particular similarity in both the old and new offences, it made sense for Parliament to harmonize the presumption of accuracy effective December 18, 2018. This coordination of one presumption common to both old and new offences does not mean that the old presumption of identity should not continue to apply to outstanding old offences. To hold otherwise would be to unnecessarily complicate outstanding 253(1)(b) trials. For cases started on or after December 18, 2018 the inapplicability of the old presumption of identity would require expert evidence. Added layers of in-court testimony is the opposite of simplification.
97If Shaikh is correct, other consequences clearly at odds with the will of Parliament arise. Prior defences restricted or foreclosed by section 258 may well be available again, including but not limited to the "evidence to the contrary" defence, which may well involve defence toxicological expert evidence, despite being foreclosed by section 320.31(3) but not subject to a transition section. Also, if the evidentiary scheme in section 258 does not apply to Over 80 charges still in the system, the accused is robbed of the rule in section 258(1)(c) that stated where there were two different breath test results, it was the lowest result that would apply, which protection is replicated in section 320.31(1) (but, again, without any transition section). Such consequences are clearly adverse to Parliament's intentions when not only looking at the Act to amend but all previous drink/drive legislation over the past fifty years.
98If Shaikh is correct, then the repeal of old sections without transition clauses creates gaps clearly at odds with the history of the drink/drive part of the Criminal Code. For example, the presumption of occupancy (i.e. that is presumed where a person is found in the driver's seat that they did so for the purpose of driving) under section 258(1)(a) has been replaced by section 320.35 without any transition or explicit retrospectivity. Indeed, the Court in Shaikh found that because 258(1)(a) was repealed the Crown could not rely on it and had to prove actual care or control. Another example includes the repeal of the certificate provisions (section 258(1)(e), (f), (f.1)(g), (h) and (i)) whose replacement sections (320.32 and 320.33) have no transition or retrospective application thereby necessitating oral evidence of analysts, qualified technicians, and doctors. With respect, to find that the repeal of these sections without legislated retrospective application could not have been the intention of Parliament because without their retrospection application the prosecution, and defence, of Over 80 charges would be made much more complex.
99For cases started, but not finished, before the new law came into force on December 18, 2018 the situation is even more absurd if Shaikh is right. In those cases, no statutory presumptions – of either accuracy or identity – would apply thus requiring not only expert evidence but also the absolute necessity to call at a minimum the qualified breath technician regarding the testing, and the analyst who otherwise would have certified the alcohol standard solution used. Again, this is opposite of what Parliament intended then and now.
100In Shaikh, the court found that requiring the Crown to call expert evidence because the old presumption of identity is forfeit does not make proof of their case impossible, but only inconvenient. It was also found in Shaikh that the frustration of the old rules by having to adduce expert evidence is ameliorated by filing an expert opinion report pursuant to section 657.3 of the Criminal Code. In my experience and that of many other trial judges, it is rare that when one side invokes section 657.3 that the other side does not seek leave to cross-examine, and where such leave is sought, that it is nearly always granted. This is true whether the toxicologist is called by the Crown or the defence. It is not realistic to think that using section 657.3 will in any way simplify the trials of outstanding Over 80 charges.
101While I agree that the Act to amend clearly applies the new presumption of accuracy to Over 80 trials started after December 18, 2018 I disagree that Parliament meant for only section 320.31 to apply to outstanding Over 80 trials. Such a finding is completely at odds with the intentions of Parliament.
102I am bound by the Supreme Court's decision in R. v. Ali, supra, wherein the court stated,
We are in the situation where a procedural statute has been repealed and no new rule of procedure substituted for the old one "in relation to matters that have happened before the repeal". This is precisely a case for the application of s. 35 [now s. 43] of the Interpretation Act which, generally, abrogates the common law rule "that, when an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" Surtees v. Ellison [(1829), 9 B.& C. 750], per Lord Tenterden at p. 752)….
Subparagraphs (b) and (e) [of what is now s. 43 of the Interpretation Act], together with the concluding part of this section, are particularly relevant here. The saving clause contained in the last paragraph permits legal proceedings to be instituted and continued as if there had been no repeal; I have no doubt that it covers the procedure to be followed in respect to such proceeding. Otherwise, the clause would hardly have any practical meaning. Also, subpara. (b) serves to continue the effect of the certificate of analysis that was sought to be introduced into evidence by the Crown under the old s. 237. This certificate of analysis was in respect of one sample of breath given pursuant to the old s. 235; it was given when the old s. 237 was still in force and it is conceded that it would be admissible evidence if this section had not been amended. It is also undisputable that the only object of this certificate, when it was given prior to the amended sections coming into force, was to serve as prima facie evidence of the facts stated therein in connection with a charge that might be laid under ss. 234 or 236. Such a certificate would certainly be "affected" if because of the repeal of the section under which it was validly given it were deprived of all evidentiary value and would thus cease to have any usefulness at all. Section 35(b) is precisely intended to prevent such an undesirable result.
103I am also bound by the Ontario Court of Appeal decision in R. v. Copley, [1988] O.J. No. 923. In his annotation of Copley, Rick Libman (as he then was) noted that the Court of Appeal
... considered the application of the Interpretation Act, R.S.C. 1970, c. I-23 to an attack on the admissibility of a breathalyzer certificate by virtue of changes made to the Criminal Code pursuant to the Criminal Law Amendment Act, 1985, c. 19, s. 36. The challenge in question was based upon the repeal of former s. 237(1)(a) which set out the presumption governing the relationship between a person's blood alcohol concentration at the time of analysis and the blood alcohol concentration at the time of the alleged offence. The said presumption ceased to be effective on December 4, 1985. Section 241(1)(c), the replacement legislation, was proclaimed in force on the same date. Accordingly, it was the submission of defence counsel that former s. 237(1)(c) applied to proceedings commenced before December 4, 1985 whereas new s. 241(1)(c) only applied to proceedings commenced after December 4, 1985. The accused had been charged with impaired driving and drive "over 80" mg on October 14, 1984, the trial Judge dismissing on June 26, 1986 the former charge on its merits and the latter due to the repeal of s. 237(1)(c) of the Criminal Code. The Crown was subsequently successful in its summary conviction appeal of the drive "over 80" mg charge; the accused appealed, in turn, to the Court of Appeal.
Defence counsel took the position that the argument that former s. 237(1)(c) did not apply to cases where the accused persons were charged prior to December 4, 1985 but tried subsequent to such date was bolstered by s. 207 of the Criminal Law Amendment Act, 1985. The said transitional provision provided for the continuation of s. 237(1)(e) and (f) to proceedings in respect of which a breathalyzer certificate had been issued prior to December 4, 1985. No mention, however, was made of s. 237(1)(c), the presumption section. It was therefore contended that Parliament must have intended that during the transitional period, evidence would be necessary to establish the link between the blood alcohol concentration at the time of the analysis and the blood alcohol concentration at the time of the alleged offence.
Grange J.A., on behalf of the Court, rejected such a contention. In His Lordship's view, Parliament could not have intended to create a hiatus for proof of blood alcohol concentration for a very limited number of persons charged, namely, accused persons alleged to have committed an offence prior to December 4, 1985 but tried subsequently. With respect to the effect of s. 207 of the Criminal Law Amendment Act, 1985 it was held that the section clearly showed an intention to preserve the evidentiary value of breathalyzer certificates issued under former s. 237. Accordingly, while s. 207 omitted to preserve the presumption pursuant to s. 237(1)(c), it could not be said that there was a clear intention to preserve the presumption or to abolish it, even for a limited period. The transitional section was thus "neutral" as to the continuance of the presumption. In the result, with no clear intention on the part of Parliament having been shown and no "contrary intention" apparent, the Court went on to resort to ss. 35 and 36 of the Interpretation Act, the sections preserving rights, obligations, investigations and legal proceedings arising from or undertaken pursuant to a repealed statute. The presumption in former s. 237(1)(c) therefore applied to the breathalyzer certificate tendered against the accused and the appeal was dismissed....
104The situation in Copley, supra, was very similar to the situation in this case. Here, as in Copley, we are faced with a change in law of presumptions where the amending legislation refers to one aspect of proof of blood alcohol concentration, but not to another. The court held that the old presumption applied because,
While there is no clear intention to preserve the presumption, there is certainly no clear intention to abolish it, even for a limited period. The certificates would be much less valuable without the presumption. In my opinion, the most that can be said is that s. 207 is neutral as to the continuance of the presumption. No clear intention therefore having been shown, the Interpretation Act, R.S.C. 1970, c.I-23 which applies "unless a contrary intention appears" can be resorted to and ...ss. 35 and 36 of that Act readily resolve the problem.
105In R. v. Stipo, [2019] O.J. No. 28, the Court of Appeal summarized the applicable principles of statutory interpretation as follows:
175 It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed, 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.
176 This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
177 It is also a well-established principle of statutory interpretation that the legislature, in this case Parliament, does not intend to produce absurd consequences. Absurdity occurs if the interpretation
i. leads to ridiculous or frivolous consequences;
ii. is extremely unreasonable or inequitable;
iii. is illogical or incoherent;
iv. is incompatible with other provisions or with the object of the enactment; or
v. defeats the purpose of the statute or renders some aspect of it pointless or futile.
See, Rizzo, at para. 27.
178 Other principles of statutory interpretation, such as the Charter values presumption, are only applied when the meaning of the provision is ambiguous. An ambiguity must be real in that the words of the provision, considered in their context, must be reasonably capable of more than one meaning. These meanings must be plausible, each equally in accord with the intentions of the statute: Bell ExpressVu, at paras. 28 and 29.
179 Courts are also required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter. For Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code: Mabior, at para. 44; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 18-19.
106In my view, these authorities are dispositive. Ali and Copely cannot be distinguished as they were in Shaikh for the following reasons.
107First, I disagree that section 320.31(1) solely governs because the new section does not address looking back at time earlier than the time of testing to determine blood alcohol concentration at the time of the offence. Section 320.31(1) is limited only to the presumption that the breath test results are accurate at the time of testing, nothing more.
108Second, I disagree that the Act to amend reflects an intent to oust both old evidentiary presumptions. Instead, it reflects an intent to harmonize only one presumption: accuracy. In the unreported decision of R. v. Jaggernauth, April 11 2019, P. Renwick J (O.C.J.) that held that in accordance with Shaikh, the presumption of identity has become an "unnecessary appendage in light of the new excess B.A.C. offence." In my view, this is an error that assumes that the new law has no presumption of identity; it does and it conflicts, without resolution, with the old presumption of identity as discussed herein. Even if I am wrong and there is no new presumption of identity, this only reinforces the need for the old presumption of identity to apply to old charges. If a presumption of identity is an unnecessary appendage for the new excess alcohol offence, it remains a critical component of the old excess alcohol offence.
109Third, section 320.31 cannot be adapted to trials of outstanding Over 80 charges given the fundamental difference between the old and new excess alcohol offences. By applying the old presumption of identity alongside the new presumption of accuracy, "the procedure established by the new enactment [is being] followed as far as it can be adapted thereto" as directed in the Interpretation Act: USA v. Drysdale, 2004 CanLII 27432 (ON CA) at ¶ 32-40. I am persuaded that the reasons in R. c. St-Louis Laberge, [2019] J.Q. no 602 (Mun. Ct.) at ¶ 45 are correct wherein the court held that
Le tribunal retient donc que les présomptions d'identité et d'exactitude sont complémentaires, mais qu'elles ne sont pas indissociables et que les modifications apportées au régime de preuve n'ont pas nécessairement pour effet d'altérer la nature de ces présomptions. Une présomption d'identité est prévue aux nouveaux alinéas 320.14(1)b) et 320.14(1)d), ainsi qu'aux nouveaux paragraphes 320.14(4) et 320.31(4) du C.cr.
(translation: "...the presumptions of identity and accuracy are complementary but they are not inseparable and that changes in the evidentiary system do not necessarily have the effect of altering the nature of those presumptions….")
110Fourth, while I agree that Parliament has been clear that the new presumption of accuracy applies to Over 80 trials started on or after December 18, 2018, the Act to amend does not contain within it any clear language or intent to abolish the application of the old presumption of identity to such cases. At best the Act to amend is neutral as to the continuation of the old presumption of identity: Copley, supra.
111Fifth, there is no inefficiency, confusion, or unfairness in applying two different presumptions of identity to old and new excess alcohol trials. This is due to the fundamentally different perspective of the old and new excess alcohol offences.
112In summary, I find that the only rational interpretation of the new law is that the presumption of identity established in former section 258(1)(c) applies to all 253(1)(b) trials not commenced until on or after December 18, 2018 given,
(a) that the Act to amend clearly intended to make excess alcohol trials as simple as possible;
(b) that the Act to amend did not intend in the repeal of section 258 to make outstanding Over 80 trials more and needlessly complex, reintroduce old defences, or deprive defendants of the use of the lowest test result;
(c) that the inapplicability of the old presumption of identity is incompatible with the object of the new law so much so as to defeat one of its stated purposes; and
(d) that there is no clear intention of Parliament to abolish the old presumptions not otherwise replaced for outstanding Over 80 matters.
113Therefore, because the old presumption of identity under section 258(1)(c) applies in this case, the Crown did not have to call expert evidence to read back the breath test results to the time of driving. The evidence of the qualified breath technician and the supporting evidence establishes beyond a reasonable doubt that the Defendant's blood alcohol concentration at the time of driving was well over the legal limit.
114Given my findings on the statutory presumption issue, the Crown's submission that I can do my own "read back" calculation is moot. However if required to make a choice, I probably would not do the calculations for the reasons set out in R. v. Stennett, [2016] O.J. No. 2599 (O.C.J.).
5.0: CONCLUSIONS
115For the reasons set out herein, I find that the Defendant's rights to counsel as guaranteed by section 10(b) of the Charter were not breached, nor would I exclude the breath test results in the circumstances of this case had his rights been violated. Furthermore, I find that the prosecution was entitled in this case to rely on evidentiary rules that were repealed before this trial started. As a result, the Defendant is found guilty of driving with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code of Canada.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice