Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jasreet Nirwan
Before: Justice A. R. Mackay
Heard on: April 4, 2019 and May 9, 2019
Reasons for Judgment released on: June 28, 2019
Counsel
John Kingdon — counsel for the Crown
Harval Bassi — counsel for the defendant Mr. Nirwan
Judgment
1Mr. Nirwan pleaded not guilty to the charge of Over 80 Operation under s. 253(1)(b) of the Criminal Code. The charge arises from a traffic stop on May 11, 2018 which eventually led to the arrest and taking of two samples of the defendant's breath with registered truncated readings of 120 and 100 milligrams.
2The only issue to be resolved in this case is whether the prosecution should be permitted to rely on presumption of identity as set out in s. 258(1)(c) of the Criminal Code. If not, the Crown would have failed to prove the charge as there was no expert evidence led about what the defendant's blood alcohol content (BAC) was at the time of driving.
3The Defence has conceded that should this argument fail, the Crown has proven the Over 80 offence beyond a reasonable doubt.
4On December 18, 2018, after the defendant was charged, Parliament redrafted and changed much of the driving offence portion in the Criminal Code. Section 14 of the Act to amend states that ss. 249 to 261 of the Criminal Code are repealed. It is no longer necessary to prove what a person's BAC was at the time of driving; the presumption of identity is irrelevant to these new offences.
5The Act to amend expressly states that the new presumption of accuracy applies retrospectively, meaning it applies to all criminal cases held after December 18, 2018. The same legislation, however, made no mention as to whether the presumption of identity would continue to apply to transitional cases.
6When legislation is repealed and replaced, s. 13 of the Interpretation Act contains express provisions dealing with such transitions.
7Section 13 states as follows:
Preamble
The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.
8The Supreme Court in R. v. Myers, described the modern approach to statutory interpretation as requiring the court to read sections of the Code "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act…"
9It is explicit from the preamble to Bill C-46 Act to amend that Parliament sought to streamline the process by which an individual blood alcohol concentration is proven.
10Over the past several years, Parliament has frequently amended the Criminal Code to simplify the prosecution and expense required to prove an Over 80 charge.
11The Supreme Court has endorsed these changes in R. v. Alex:
To address the challenges posed by the large number of drinking and driving offences, Parliament has, over the years, taken steps to simplify and streamline the trial process. One such step, which dates back to 1969, involved the introduction of evidentiary shortcuts into the Criminal Code, R.S.C. 1985, c. C-46. These shortcuts, now found in ss. 258(1)(c) and 258(1)(g) of the Code, permit the Crown to establish an accused's blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused's breath readings.
12I agree with the conclusion of a number of decisions on this point that the cases of R. v. Ali (1979), [1980] 1 S.C.R. 221 (S.C.C.) and R. v. Copley (1988), 43 C.C.C. (3d) 396 (Ont. C.A.) help resolve the issue before the court.
13Ali and Copley dealt with legislative change to BAC evidentiary provisions and decided on their applicability to transitional cases.
14Justice Grange in Copley held that the then amended s. 207 (since repealed), showed an intention to preserve the evidentiary value of the certificate made with the former subsection:
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 in my opinion, ss. 35 and 36 [now 43 and 44] of that Act readily resolve the problem. (Emphasis added)
15Similarly here, the Interpretation Act, R.S.C. 1985, c I-21, s. 43 in these circumstances applies and resolves the issue:
Effect of repeal
- Where an enactment is repealed in whole or in part, the repeal does not
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(Emphasis added)
16Even if it was a situation where Parliament by mistake failed to avert to this issue of including a provision dealing with the survival of s. 258(1)(c) for transitional cases, I agree with Duncan J.'s analysis in R. v. Yip-Chuck:
With respect to the third option — mistake: Even if the new enactment's silence on the continued applicability of the presumption of identity was an oversight, it is saved by the law as per the second option above. It was not necessary to make provision for the presumption of identity in transitional cases since silence, either intentional or unintentional, is sufficient to ensure its survival.
17I have had the benefit of reading the decisions released to date on this issue. I am thankful to jurists on both sides of the issue for assisting me in determining how to resolve this issue. With respect to my very learned brothers, I have concluded that the presumption of identity continues to apply to prosecutions under the former s. 253(1)(b) Code offence. Given my conclusion, there being no other defence raised in this case, I find the Crown has proven the defendant guilty beyond a reasonable doubt and he will be convicted of driving a motor vehicle with excess blood alcohol.
Released: June 28, 2019
Signed: Justice A. R. Mackay