R. v. Franco, 2023 ONCJ 285

St. Catharines

DATE: 2023.03.29

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

JASON FRANCO

Before: Justice Fergus ODonnell

Reasons for Judgment

Counsel: Ms. S. Patel............................................................................................................. for the Crown Mr. B. Starkman..................................................................... for the defendant, Jason Franco

Fergus ODonnell J.:

“Notice is a concept, not a document.”

Overview

1. The ability to crystallize a crucial concept in just a few words and thereby to capture an audience’s attention is a rare gift.
2. In statesmanship, the standout example of such skill last year was Ukrainian President Volodymyr Zelenskiy. Faced with what was universally expected to be a three-day rout when Ukraine was invaded by Russia, probably including his own imminent death, his response to the United States offer to evacuate him was six words: “I need ammunition, not a ride.” Its Churchillian defiance will resonate through history.
3. There are also more prosaic, quotidian environments in which brevity has great value. In the context of this trial, the prize goes to the observation made by Justice Kerans of the Alberta Court of Appeal that, “notice is a concept, not a document”.¹ Sadly, the inescapable and irrefutable common sense exemplified in those seven words thirty-five years ago has failed to take flight. Equally regrettably, the endorsement of those words in a clarion call by one of this court’s outstanding judges two decades ago has likewise failed to find traction across the judiciary. To the contrary, these wise insights have been smothered by intervening judicial decisions that have failed to adapt to, or even recognize, the sea changes in Canadian criminal law since the Maple Leafs last won the Stanley Cup.
4. If such judicial torpor had happened in any field other than drink-driving, it would be a shock.
5. It has, however, for decades been one of life’s embarrassing and tragic realities that Canada’s drink-driving law, as interpreted and perpetuated by the courts, has far too often been the place where common sense went to die. There are reflections of that regrettable reality in this case, although, in the result, they are not determinative of the outcome. This enormous and extended dysfunction in the criminal law matters because drink-driving cases consume a disproportionate amount of time in the criminal courts, time that is not justified by the wraith-like lack of substance of so many of the arguments advanced. This is court time, paid for at enormous public expense, that now and for at least the past few decades could have more purposefully been put to use providing speedier trial dates to presumptively innocent defendants who wait in custody for their chance to be heard. The dysfunction matters because it creates a justice system that gives lip service to the seriousness of drink-driving and the horrendous daily human cost it inflicts on innocent members of society and their families, friends and communities while turning the trials of such cases largely into a game of snakes and ladders,² in which justice is often jettisoned over a perceived procedural shortcoming that is likely irrelevant in a scandalous percentage of cases.³
6. In the present case, Mr. Jason Franco appeared before me charged with two drink-driving offences, namely having care and control of a conveyance while impaired and while having an excess blood alcohol concentration. The Crown says it has made out both charges beyond a reasonable doubt; the defence argues the contrary. Clearly, the burden throughout this trial is on the Crown; the defence does not have to prove anything, other than where there is a relevant presumption in law. There is one such presumption here, namely the presumption under s. 320.35 of the Criminal Code that by occupying the driver's seat of the car Mr. Franco is"presumed to have been operating the conveyance unless [he establishes] that [he] did not occupy that seat or position for the purpose of setting the conveyance in motion." There was no evidence at trial capable of rebutting that presumption.
7. Mr. Franco's identity as the person the police found in the driver's seat of the conveyance that morning was conceded during the trial. His identity as the person behind the wheel of the car earlier, which led to the hearsay allegations about driving behaviour that led the police to attend, was not conceded.

The Facts

8. The facts are fairly simple. The evidence establishes that Constable Tennant of the Niagara Regional Police responded to a call just before 8:30 a.m. for a suspicious vehicle that had allegedly almost hit the Oyo Hotel in Niagara Falls. On arrival he found a Mazda CX-5 that had been driven with both front wheels over the kerb and onto the sidewalk to within five inches or so of the wall just in front of room 5. He said that anyone seeking to exit room 5 would have had to climb over the car to do get out.
9. There was no direct evidence of Mr. Franco having been the driver of the car who allegedly almost hit the building, but Constable Tennant found Mr. Franco asleep in the reclined driver's seat of the car, with a half-full bottle of whiskey in the cupholder. The car was running and the transmission was in the park position. The car was registered to Mr. Franco.
10. Constable Tennant woke Mr. Franco up and detected the smell of an alcoholic beverage on his breath. He said that Mr. Franco seemed sleepy and that his eyes were watery and bloodshot. Constable Tennant said Mr. Franco slurred his words, which amounted to the utterance"I don't understand" when Constable Tennant woke him up and asked him what he was doing there. When asked in cross-examination, Constable Tennant could not articulate any specific characteristics about those words that were slurred, but relied on his experience from having done about forty breath tests during his own year as a breath technician.
11. Although Charter materials were filed, Mr. Starkman did not pursue any Charter application, fairly conceding that the requisite standard of grounds for arrest had been made out by Constable Tennant.
12. Constable Tennant had no note or recollection of having served the breath certificate and notice of intention on Mr. Franco. This contrasts with the fact that the document purporting to be the breath technician's certificate, which was filed by the Crown and accepted by the defence, but explicitly conditional on cross-examination, bears Constable Tennant's name as the officer who served it on Mr. Franco. The certificate/notice of intention is a single page, with the notice portion occupying roughly the bottom fifteen percent of the form, underneath Constable Lester's signature as the qualified technician. The form has a line for the accused to sign, but in this case that line is blank, with an arrow leading lower down on the notice where there is a scribbled signature, the first part of which looks an awful lot like "Jason". There was, however, no evidence about how that signature got there or whose it was. Underneath that scribble one finds, typed, the name “Tennant” beside the pre-printed words “Served by”, along with the date, which matches the date of Mr. Franco’s arrest and breath tests.
13. Constable Lester was the breath technician who took Mr. Franco's breath samples at the station. She testified that she took two timely samples, twenty-three minutes apart, showing blood alcohol readings 197 mg of alcohol per 100 ml of blood at 9:37 a.m. and 193 mg of alcohol per 100 ml of blood at 10:00 a.m. A copy of her breath technician's certificate and equipment print-out was marked as an exhibit conditionally, subject to cross-examination. She identified the certificate she had prepared but said that it was not she who had served it (including the notice that forms part of the same page) on Mr. Franco. She could not say if the handwritten signature on the notice had been put there by Mr. Franco.
14. Constable Lester testified that Mr. Franco’s face was flushed and his eyes were red and glossy. She did not notice a smell of an alcoholic beverage from Mr. Franco's breath but pointed out that she was wearing a mask throughout and he was wearing a mask for "quite a few" portions of their time together. She noted slurred speech throughout their interaction, with intermittent hiccoughing. She agreed that his mask could make his speech sound "muffled", to use the precise word used by Mr. Starkman.
15. In re-examination, Constable Lester, said that Mr. Franco's speech was noticeably slurred. This came after the Crown asked if Constable Lester could tell Mr. Franco's voice was slurred, which Mr. Starkman objected to, as a leading question. When the Crown asked how Mr. Franco's speech was when they were having discussions while his mask was off, Constable Lester said it was noticeably slurred.
16. With respect to her conduct of the tests, Constable Lester testified that she used an approved instrument and ran three quality assurance tests"to make sure the instrument was ready", for which she tendered the original printouts in court. She also identified the standard lot number. She identified the certificate she had prepared under s. 320.32(1) of the Criminal Code.

Has the Crown Proved Beyond a Reasonable Doubt that Mr. Franco Was Impaired?

17. Impairment is generally proved by an accumulation of circumstances that cumulatively rise to the level of proof beyond a reasonable doubt. It is important to note that while the criminal standard of proof is exacting, the level of impairment that must be made out to that standard is only impairment to some degree of the defendant's ability to drive. Indicia of impairment may include glossy eyes, bloodshot eyes, the odour of an alcoholic beverage on a person's breath (which by itself is only evidence of consumption of alcohol), difficulty walking or standing, poor fine motor skills, slurring words and so on. Some of the indicia of impairment may be consistent with other conclusions. For example, in the present case, one or more of the indicia may be consistent with having awakened from sleeping. It is the totality of the evidence and whether or not it rises to proof beyond a reasonable doubt that ultimately matters.
18. Slurring is a potent indicator of impairment. Mr. Starkman expressed concerns about the evidence of slurring from both Constable Tennant and Constable Lester. With respect to Constable Tennant, Mr. Starkman focused on the few words uttered by Mr. Franco that Constable Tennant purported to rely upon and on Constable Tennant's inability to explain "how" they were slurred. I do not take either point to be persuasive. Obviously, more evidence of slurring might be more persuasive, but slurring is slurring. In human experience it is not one of those things that people routinely do just because they have only recently woken up. It might in some cases be caused by neurological and some other disorders, but on the record before me that possibility would be nothing more than sheer speculation.
19. Oxford defines "to slur" as to"speak indistinctly so that the sounds run into one another." It is not a complicated or multi-layered concept. Contrary to what Mr. Starkman suggested, the use of the word does not require further breaking down or explication by a witness, although questions about how badly the person was slurring (for example from slight to severe) might not be unfair, nor would questions about the nature and extent and circumstances of the witness's opportunity to make the observation.
20. The law has long been clear that a lay witness is entitled to express an opinion about whether or not a person is impaired. See, for example, the decision of the Supreme Court of Canada in Graat, [1982] 2 S.C.R. 819. While it would be fair for counsel to ask a witness what specific characteristics led to their conclusion that a person was impaired, of which slurred speech might be one, there is a point at which the component elements cannot each be further broken down. To borrow a word from the Supreme Court in Graat, such further detail would simply be too "evanescent" to be realistically expected.
21. I do not find any cause to question Constable Tennant's conclusion that Mr. Franco was slurring his speech from either the limited words he was able to recite a year later at trial or from the fact that he did not record in his notes a verbatim accounting of Mr. Franco's utterances that led to that conclusion. Assuming I believe his evidence, which I do, a present recollection that Mr. Franco was slurring his speech suffices to prove that point. A witness's notes never have been required to be a verbatim recording of events. I accept that Mr. Franco was slurring his words in the presence of Constable Tennant.
22. The other source of evidence on that point is Constable Lester, the breath technician. There were a couple of points in her evidence where she referred to Mr. Franco slurring his words. Mr. Starkman took umbrage at the second instance, contending that her evidence had no value because it had been elicited by a leading question from the Crown. I agree that a leading question can diminish, or perhaps even obliterate, the value of the resulting answer in an appropriate case, but as with so many things in life, context matters.
23. In this case, Constable Lester had testified in chief about Mr. Franco slurring his speech. In cross-examination, Mr. Starkman asked her questions about masks and alcoholic odour and muffled speech. In re-examination, Ms. Patel, for the Crown, asked "And you could tell he slurred?" If this had arisen out of nowhere, it would clearly be a leading question on a highly material point. It did not, however, arise from nowhere. To the contrary it was simply a restatement from Constable Lester's own, unprompted evidence in chief about Mr. Franco slurring. Ms. Patel's question was not, in that context, leading, but rather directive, i.e. focusing Constable Lester's attention back to her earlier evidence about slurring in order to probe the issue of mask-wearing, which had been addressed by Mr. Starkman in cross-examination. In this context the question was not leading and the answer retains significant probative value. Constable Lester's evidence was that Mr. Franco was slurring "noticeably". As with Constable Tennant, I see no basis upon which to reject Constable Lester's evidence and I accept it fully.
24. I accept as proved beyond a reasonable doubt that in his interactions with both officers, relatively brief with Constable Tennant, longer with Constable Lester, Mr. Franco was slurring his words.
25. The evidence with respect to impairment by alcohol, therefore, is that Mr. Franco was found, around 8:30 in the morning, reclined in the driver's seat of his car, which was running and which had both front wheels mounted on the sidewalk kerb in front of a hotel room in such a way that it would impede any occupants of that room from exiting the room. There was a half-full bottle of whiskey in the cupholder beside him, and on being roused from sleep there was a smell of an alcoholic beverage emanating from his breath, his speech was very slurred and he seemed (perhaps unsurprisingly) sleepy and his eyes were bloodshot and watery.
26. About an hour later, the breath technician noted slurring throughout her interaction with him, which she described as noticeably slurred. She also noted red, glossy eyes and that Mr. Franco's face was flushed.
27. It is the totality of these observations, including an assessment of the number and weight of any alternative explanations, based on the evidence or lack of evidence, that leads to a conclusion that the Crown has either proved beyond a reasonable doubt that Mr. Franco's ability to drive was at least somewhat impaired by alcohol or it has failed to meet that threshold. The reaching of conclusions based on circumstantial evidence is governed by the law as set out by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, where citing the Alberta Court of Appeal in R. v. Dipnarine, 2014 ABCA 328, the Supreme Court said that:

[ 42 ] ...........“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

28. In this case, for example, it is hypothetically possible that someone else drove Mr. Franco's car up over the kerb and on to the sidewalk, blocking the door to room #5 and that that person thereafter left the car, whereupon Mr. Franco got in the driver’s seat, put the seat back and went to sleep. That is possible, but not in my view reasonable. It certainly does not create a reasonable doubt.
29. Looking at all the evidence I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Franco was operating the Mazda while his ability to do so was at least somewhat impaired by alcohol. I find him guilty of that charge.
30. I note in passing that much of this debate about Mr. Franco’s condition and about what had or had not been proved might likely have been avoided, or simplified, if a few basic steps had been taken. This should not be taken as a criticism of people, but rather of processes. First, in contemplating the issue of Mr. Franco’s slurring, I am reminded of a time in the past when an issue that was very much in vogue (in drink-driving cases unsurprisingly) was whether or not the police should have taken special care with some defendants based on the defendant’s assertion that he or she did not adequately speak English and thus did not understand their rights no matter how carefully the office explained them in English. This typically involved a twenty-something, unilingual police officer expressing an opinion on the language skills of a person he had never met before, but for an hour or so in the wee hours of the morning, while the defendant, usually someone who had functioned for years or decades in Canada (although that is not determinative) insisted, through an interpreter, (whose services might or might not have actually been required), that he did not speak English well enough to understand his rights. In all of those cases, body-cameras, in-car cameras and the playing of breath-room videos would have provided original source evidence on the point, but the body-cameras and the in-car cameras were not in vogue at the time and the breath video would often not be played. In the present case, had Constable Tennant been wearing a body camera, we would have wasted less time on the slurring issue, but officers of the Niagara Regional Police Service have neither body cameras nor in-car cameras, despite the fact that, to mimic the Prime Minister some years ago, “it’s 2023”. Observations that are “evanescent” when recited through the mouth of a witness tend to become much more objective when on video. It is obviously up to the Niagara Regional Police to decide how to spend their budget, but if one is in the business of acquiring evidence to prove serious criminal charges, it does not seem like a complicated determination.
31. In a similar vein, this simple, two or three witness trial, was pre-tried to run for two days (although it ultimately ran less than a day, in part due to characteristically reasonable concessions by Mr. Starkman).⁴ Had the breath-room video been played, the trial would still have been under a day and objective evidence about slurring, etc. would have been available. Indeed, if the police were to change their procedures to have the breath technician serve the notice on the defendant on camera, another issue in this case (as seen below), would have been avoided.

The Excess Blood Alcohol Charge

32. There are two ways the Crown could prove the excess blood alcohol charge: (a) by calling the arresting officer and filing the breath technician’s certificate; (b) by calling the arresting officer and also calling the breath technician. In this case, the arresting officer, the breath technician and the certificate were all before the court. I shall deal with proof of the excess blood alcohol charge through the technician first, as it is more easily dealt with and less controversial. Indeed, a discussion of how to prove that charge through Constable Tennant will take twice as much paper and ink as the rest of these reasons combined.

Proving the Excess Blood Alcohol Charge Through the Breath Technician

33. As discussed above, Constable Tennant’s evidence demonstrates beyond a reasonable doubt that Mr. Franco had care and control of the Mazda at the relevant time.
34. When the breath technician, Constable Lester, testified, she spoke not only of her observations of Mr. Franco but also of her process of testing his breath. In the course of that testimony, she adverted to her certificate. I cannot sensibly read her testimony without taking that testimony as given orally and also as constituting an adoption of her certificate and its contents. The combined effect of that evidence is that Mr. Franco’s excess blood alcohol content has been proved beyond a reasonable doubt, including the various requirements established by s. 320.31 of the Criminal Code.
35. In two paragraphs, that sums up a sufficient basis for finding Mr. Franco guilty of the excess blood alcohol charge, although the point might ultimately be moot since one or other of the impaired and excess blood alcohol findings will ultimately be conditionally stayed.
36. Given the argument that was advanced about the s. 320.32(2) notice issue, however, I consider it appropriate to consider an alternate path to conviction on the excess blood alcohol charge, namely that, even without evidence from Constable Tennant that he had actually served the breath certificate on Mr. Franco, the defence argument that notice had not been made out must necessarily fail in the year 2022. The final two-thirds of these reasons address that issue.

Admissibility of the Certificate Independent of Constable Lester’s Evidence

37. The other pathway for the Crown to prove an excess blood alcohol charge is by tendering the breath technician’s certificate, which, under s. 320.32 (1) of the Criminal Code is stand-alone evidence of the assertions set out in the certificate. However, there is a precondition to that certificate being tendered in evidence, namely, in s. 320.32 (2), that"no certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate."
38. And so we enter one of the rabbit-holes that is the law of impaired driving in Canada. To an enormous extent, the law of impaired driving in Canada is an alternate reality universe; Timothy Leary would probably feel at home there. One could think of more subtle ways to word that, but there is no virtue to be found in sugar-coating the proposition or dressing it up in lawyerly language. With all due respect to those of contrary view, it would require blinders to think otherwise, but it is the nature of things that established patterns are remarkably resistant to change. So it is with the labyrinth of drink-driving law that has become entrenched in this country over the past fifty years or so.
39. I stress at the outset that, as drink-driving offences are criminal offences, the burden is always on the Crown to prove them beyond a reasonable doubt and it is entirely legitimate for a defendant facing such charges to put the Crown to the proof of its charges and rely on any arguments legitimately available, be those arguments constitutional, procedural or substantive. Judges must apply the law as it is set out in the Criminal Code and other statutes and as it has been developed in the cases written by courts over the years. Those principles govern Mr. Franco's trial as they govern every other drink-driving trial. What I say below about the shortcomings and excesses of drink-driving law as it has developed in this country in no way negates the fact that all defendants are presumed innocent, that the Crown must prove its case and that for every offence type the Crown’s case may fall short, whether that shortcoming is rooted in the evidence, in the governing statutes or in the Charter of Rights. Sadly, the development of the law of drink-driving has encouraged thousands of defendants with highly dubious defences to roll the dice at trial in pursuit of an unusually high rate of acquittal and those defendants' trials have massively clogged up the court system, to the detriment of other defendants awaiting their trial dates, including defendants who are in custody.
40. The problem does not lie with defendants, it lies with judges.
41. There is an omnipresent danger for human beings to become inured to the environment we occupy, to accept the status quo without considering that the incremental development of that status quo leaves it no longer fit for purpose and no longer relevant to current reality. It is not the function of this judgment to be a royal commission on impaired driving law, but it does behove us as judges to step back and consider what we collectively have wrought when it comes to the law of impaired driving in this country. Without doing that, the danger is that we perpetuate an already Byzantine legal landscape in which substance is very often suffocated by processes that are far more the product of judicial acquiescence or creativity than they are the product of legislation or substantive or constitutional merit.
42. A few examples should suffice to make the point. One is that for a long time Canadian judges would find reasonable doubt in the evidence of a defendant's drinking companions to the effect that the defendant could not possibly have had an excess blood alcohol concentration because he or she had supposedly consumed but a trifling amount of tipple, something they invariably recalled very clearly, because keeping a meticulous tab on their companions’ consumption in bars is what normal people do and despite the fact that a highly mature scientific process demonstrated the contrary. Likewise, the rabbit-hole of impaired driving law gave flight to the concept of bolus drinking as a defence, a defence that while not conceptually impossible in an extremely narrow range of circumstances was argued and accepted more often than reason would support.
43. It is against that backdrop that the Crown and defence argue whether or not the excess blood alcohol charge has been made out. As I have said, the Criminal Code provides two pathways to prove an excess blood alcohol case: (a) by filing a certificate of a qualified technician, or, (b) by calling the technician as a witness. There is nothing in the law that prohibits the Crown from doing both. In this case the Crown did both.
44. As the filing of a breath certificate is a procedural shortcut, the Criminal Code places certain preconditions on its admissibility at trial. Sections 320.31 and 320.32 of the Code sets out the current version of those preconditions as follows:

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken , the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate. (emphasis mine)

The portions bolded above were the object of scrutiny in Mr. Franco’s case. Mr. Starkman said that the requirement in s. 320.31(1) had not been satisfied, but I have explained earlier that in my view Constable Lester’s testimony necessarily incorporates the certificate, which specifically addresses that requirement.

45. The latter subsection, s. 320.32(2) is the section that governs the admissibility of the certificate that Constable Tennant appears to have forgotten serving. Provisions similar to s. 320.32(2) have been a feature of the Criminal Code for a very, very long time. They have been interpreted by courts over the years and there have been suggestions that they should be reinterpreted where the circumstances leading to the original interpretation may no longer apply. This issue raises questions about consistency in the law over time, the need for the law to adapt to changing circumstances and the extent to which present courts are free to modify the law when the existing interpretation comes from a higher court, such as the Court of Appeal or the Supreme Court of Canada.
46. Leaving previous judicial interpretations of the notice requirement in s. 320.32(2) aside for the time being, the rational starting point is to ask why notice is required. Notice is required as a matter of basic fairness, to avoid ambush, to enable a defendant to know the case he or she must meet and to allow him or her to prepare and present a defence. Leading a certificate in evidence against a defendant who was not actually aware it was going to be used against him would quite simply be entirely wrong.
47. When breathalyzers were coming into use in the middle of the last century, the realities of a criminal trial in this country were entirely different from today. Unless specifically required, for example, what we now know as “disclosure” was what a specific prosecutor deemed appropriate to give in a specific case, perhaps only at the outset of the trial. In an environment like that, notice requirements such as the current s. 320.32(2) made tremendous sense and their early interpretation could be justified based on the Canadian legal landscape of the mid-twentieth century. And the notice requirement continues to make sense. However, there is absolutely no logic in blindly requiring that the “notice” given in the 2020s be the same as notice given in the 1960s. As with a lot of things in the intervening six decades, much has changed in how criminal trials work.⁵
48. The reality of the present case is that Constable Tennant, the person who probably in fact gave the notice to Mr. Franco, did not remember doing that, did not apparently have a note to that effect and did not testify to having done so. Accordingly, if notice must be proved formally at a trial in 2022, it was not going to be proved by Constable Tennant’s evidence.
49. During argument, I was presented with two cases on the current meaning of notice in the drink-driving certificate context. I was actually presented with more than two cases, but two cases in particular stand out. The earlier was R. v. Balen, [2002] O.J. No. 5966 and the more recent was R. v. Kelly, [2020] O.J. No. 5128. There are countless cases on the notice question, which is one of many facets of the drink-driving industrial-legal complex in this country that has generated innumerable decisions by countless judges. I stress these two cases based on their authorship, the former by Duncan J. of the Ontario Court of Justice and the latter by Durno J. of the Superior Court of Justice.
50. On a normal day, a judge would be content to have a decision by either of these judges put before him or her, as such an authority is invariably a “sit up and pay attention” kind of moment. Alas, in this case the reference to these two judges’ opinions was an uncharacteristically dysphoric moment for this simple reason: each judge leads the reader in opposite directions. They cannot both be right.
51. Justice Duncan’s words, still resonant across the two decades that separate them from today are so compelling that they merit quoting at substantial length:

4 There is also a longer answer to the argument. It can be shortly stated: The long prevailing interpretation of this subsection, requiring proof of service of a copy of the certificate as a condition precedent to admissibility of the certificate, should be re-examined and abandoned in this era of full pre-trial disclosure. Proof at trial that a copy of the certificate was given to the defendant should no longer be required.

o 258(7) No certificate shall be received in evidence pursuant to [this section] unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

5 This subsection, in virtually identical terms, first appeared in the Criminal Code with the introduction of the first breathalyzer provisions in the 1960s. It was designed to provide a simple rule of pre-trial disclosure, applicable to an exceptional method of proof, in an era in which pre-trial disclosure was far from the norm and indeed was scarcely known. A number of similar provisions are found in the Code and elsewhere.

6 Unfortunately, this simple rule that disclosure be given came to be treated as if it was a rule that such giving had to be proven. Thus, a provision designed to benefit the accused by assisting him in making full answer and defence on the merits morphed into a hurdle for the Crown to leap and became a "defence" in itself.

7 Proof of the subsection's requirements became a hot spot of contention at trials. An enormous body of case law developed, often splitting the atom over distinctions and refinements between "copy" or "true copy" and other such points. Martin's Criminal Code 2002 excerpts no less than five reported decisions from Courts of Appeal dealing with such arguments. Mcleod and Takach, Breathalyzer Law in Canada Ch 22 , devotes some sixty-one pages to the subsection, and seven pages of reported case excerpts dealing with the meaning of "copy" alone. MacFarlane, Drug Offences in Canada ( 1st edition ) devotes 35 pages to issues arising from a similar section in the narcotics statute. One can only imagine how much time and energy has been devoted by trial courts in unreported litigation over what is, at heart, simply a matter of disclosure.

8 In my respectful view, this adversarial approach is a colossal waste of time and serves no legitimate interest of either the accused or the administration of justice. Worse still, the perverse transformation of this disclosure provision into a "defence" and the seemingly endless litigation surrounding it, fosters the unfortunate appearance of a criminal trial being akin to a game of snakes and ladders where the trial becomes focussed on, and the outcome sometimes turns on, something that is far removed from the merits of the case or any legitimate issue of procedural or evidentiary fairness. The adversarial approach should be discarded. A new approach should be considered and adopted.

9 Whatever little merit the adversarial approach may have had in the past has now been wholly extinguished by the modern law and practice of pre-trial disclosure. As mentioned, the law of disclosure has greatly developed since the enactment of the subsection. However it, and other similar, isolated, statutory disclosure provisions, remain on the books as historical anachronisms that have been rendered redundant by the general law of disclosure. We now have a clear rule and understanding that disclosure of all relevant evidence must be made to the accused before trial and that failure to disclose may be addressed by any of a number of remedies, from an adjournment, to a stay, to a ruling that the evidence is inadmissible. The administration of criminal justice in Ontario has developed disclosure practices, guided by case law, the Martin Committee Report and Crown practice directives. Full disclosure by the prosecution to the defence is routine and almost always non-controversial. The Court is rarely called upon to referee a disclosure dispute but, should one arise, there are pre-trial mechanisms for doing so. In this era, it is unthinkable that the defence on an exceed 80 charge would not have been given a copy of the certificate and notice before trial. If by oversight or otherwise he has not received a copy, all he need do is ask.

10 It is my view that this reality should inform a new approach and interpretation of the specific disclosure obligation in subsection 258(7). The disclosure of the certificate, like other disclosure, should not be the subject of proof at trial at all, much less subject to proof beyond reasonable doubt. Defence counsel should be constrained from putting the matter in issue when in fact disclosure of the certificate and notice has been made, and, conversely, should bring any oversight in disclosing to the Crown's attention, before trial, for remedial action. On the rare occasions when a dispute arises, the court should resolve it as it resolves any disclosure dispute.

11 All of the foregoing is, of course, mere wishful thinking if the wording of the subsection compels adherence to the adversarial approach. The words of the section require that a copy be "given". Once again, the section reads:

o (7) No certificate shall be received in evidence unless ... the [Crown] has given ... notice of intention and a copy of the certificate ...

The section does not read, to the effect:

o (7) No certificate shall be received in evidence unless it is proven that the [Crown] has given a copy of the certificate ...

Accordingly, the specific words of the section require giving but do not expressly require proof of giving, -- consistent with the general rules respecting disclosure.

12 But it might be said that the requirement for proof is to be inferred from the words declaring the certificate inadmissible if a copy has not been disclosed. In my view, those precise words " No certificate shall be received in evidence " can reasonably be interpreted as speaking only to the result that will flow from non-disclosure, and as serving only to remove any discretion regarding remedy that the court might otherwise have had where disclosure has not been made. The words do not compel an interpretation that mandates proof of disclosure, and, while such an interpretation may be available and indeed has long been the assumption behind the adversarial approach, it should not now be favoured, given the lack of utility in such an approach, as per above.

13 In summary, the words of the subsection do not in themselves require the Crown to prove compliance with it as part of its case. The long-standing assumption that such proof is required has nothing to commend it and is entirely out of step with our times. A plausible and far preferable interpretation is available and should be adopted, that is, that the effect of the section is to provide for disclosure (now redundant) and to fix the remedy for non-disclosure to be inadmissibility (the only real effect of the subsection). Proof of having made such disclosure is not required at trial. (Footnotes omitted; emphasis is mine).

Justice Duncan’s decision in Balen was appealed to the Superior Court. The appeal was dismissed, but his comments above were not the object of the appeal.

52. When I read Justice Duncan’s words, the first word that comes to mind is “unassailable”. There is nothing in his words that can be gainsaid other than by what is in effect a resort to that least convincing of arguments: “but we’ve always done it this way.” Regrettably, “we’ve always done it this way” has continued to dominate the conversation, including in the Kelly decision, a summary conviction appeal decision by Justice Durno almost two decades after Justice Duncan’s clarion call for common sense to reclaim the field. Tragically, to borrow from Dylan Thomas, in light of Kelly, “time held Justice Duncan dying, though he sang in his chains like the sea”. The price paid by the court system for this resistance to change over the past decades has undoubtedly been enormous.⁶
53. In the paragraphs that follow I set out the contrary perspective, that exemplified by Justice Durno’s decision in Kelly. It is a perspective that is undoubtedly rooted in years of jurisprudence, but not all old things are good and not all old things are suited for the present; so it is with the entrenched and resilient law of notice in drink-driving cases. Its best-by date is long past. With enormous respect, I say that the conclusions reached by Justice Duncan in Kelly (and by various other judges over the years) are unsound and there is no valid contradiction of what Justice Duncan had to say in Balen.
54. In reaching that conclusion, I am reinforced by the words of Doherty, J.A., in dissent in R. v. H. (J.), where he observed:

[78] As is often the case, the outcome of the analysis of the problem presented on this appeal depends on one’s starting premise. I begin from the principle that the determination of criminal liability should not be akin to a game of procedural “snakes and ladders” where the outcome is unconnected to the merits of the allegation. Young persons, like anyone else, should not escape responsibility for their criminal actions because of an administrative error that has nothing to do with the merits of the allegation, and in no way compromises the young person’s ability to defend against the charge or the fairness of the proceedings. In certain situations, our law recognizes that policy concerns demand that criminal allegations should be disposed of on grounds other than the merits. The circumstances in which those policy considerations will override the imperative to arrive at a disposition on the merits, however, should be limited to situations where the applicable statutory language clearly demands it, or the policies served by allowing a guilty person to escape responsibility are compelling. Consequently, I do not begin my analysis by asking whether Parliament has specifically provided that non-compliance with s. 20(6) should not affect the respondent’s criminal liability. Instead, I ask whether Parliament has clearly indicated that non-compliance should preclude a determination of a criminal charge on its merits, or whether the policy underlying s. 20(6) demands that accused persons escape liability for their criminal conduct. (Footnotes omitted. Emphasis mine.)

55. The entirety of Justice Durno’s comments in relation to the interpretation of s. 320.32 in a post-Stinchcombe world amounts to the following:

97 Finally, I turn to the 'disclosure' answer to the service issue - that it can reasonably be inferred that an accused received a copy of the Certificate in disclosure if there is no disclosure application. The Crown argues that is particularly so when the accused is represented by counsel experienced in defending drinking and driving cases, as was the case in both appeals. I disagree.

98 The same submission about inferences from disclosure was argued in El Boury before Miller J. who concluded at paras. 31-33:

o The Crown urges me to hold that given the requirements of disclosure in Stinchcombe, a trier of fact should be able to infer that a copy of the certificate was given to the accused in disclosure and it should be for an accused person to raise a Stinchcombe issue if a copy of the certificate was not given. The Crown submits that an accused should be estopped from challenging the admissibility of a certificate pursuant to s. 258 (7) absent a Stinchcombe argument. In this the Crown relies on R. v. Balen [2002] O.J. No. 5966 (O.C.J.)

o With respect, this would place an onus on an accused that is not in keeping with s.258 (7). As noted by the Supreme Court of Canada in R. v. Noble [1977] S.C.J. No. 68:

o These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

o Further, the Ontario Court of Appeal in Mackinnon made it clear that compliance with s. 258 (7) must be proven by the Crown on a balance of probabilities. I do not accept the Crown's argument in this regard.

99 I agree with Her Honour's analysis. Further, there was no evidence in either case as to what was provided by way of disclosure. There was no index of what was disclosed. Regrettably, in my experience at the bar and on the bench, in the absence of evidence I am unable to conclude that since Stinchcombe one can assume what was disclosed.

100 That both defence counsel were experienced in defending drinking and driving cases does not assist the Crown. That an experienced counsel whose client did not provide him or her with a copy of the Certificate and did not receive a copy in disclosure would inevitably alert the Crown to this issue through a Stinchcombe application is not an inference I am prepared to draw.

101 Again, the remedy is neither time-consuming nor costly. Signed acknowledgements on receiving disclosure with an index containing what was disclosed or the evidence of an exhibits' clerk could establish that the Certificate was given in disclosure.

The reference to Mackinnon in Justice Miller’s judgment cited by Justice Durno is a reference to the endorsement of the Court of Appeal for Ontario in R. v. MacKinnon. MacKinnon is a nineteen-line endorsement on the issue of what constitutes ample proof that a copy is a copy, another issue that befuddled the courts in drink-driving cases for an inordinately long period of time. It also stands for the proposition that notice does not have to be proved beyond a reasonable doubt.

56. The reference to Justice Miller’s decision in R. v. El Boury, [2016] O.J. No. 4063 (SCJ) provides a modern example of how the notice provision in s. 320.32 (then s. 258(7)) of the Criminal Code has been allowed by judges to become weaponized and to be converted from an anti-ambush provision as was its original purpose in an entirely different, pre-Charter, pre-Stinchcombe legal environment, into a means to avoid trial on the merits in a world where full disclosure and extensive judicial case management are now the norms. If one were looking for a poster-child to highlight the virtues of Justice Duncan’s concerns in Balen, El Boury would be a good choice. Sadly, however, countless other decisions could compete with it.
57. El Boury was a case in which the police service involved followed the practice of showing the certificate to the defendant and then putting it with his property for when he was released, meaning that the arresting officer could not say for certain that the defendant took it with him on release.⁷ In that case, however, the Crown also relied on the Stinchcombe approach to satisfying notice, which Justice Miller (and by adoption, Justice Durno), rejected. Justice Miller had this to say on that point:

10 The Crown also called evidence from a case management assistant in the Crown Attorney's office. This witness testified that she had prepared and logged for disclosure, in addition to other material, a copy of the certificate. The disclosure records showed the disclosure had been provided January 23, 2015 to Peter Favrin, an agent for Mr. El Boury.

11 In relation to this evidence the trial judge found that this evidence was hearsay and she did not rely upon it in finding that service of the certificate had been made on Mr. El Boury.

29 I further agree with the conclusion by the Alberta Court of Appeal in Redford that compliance with s. 258 (7) can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R. v Stinchcombe, [1991] 3 SCR 326.

30 The trial judge here was not satisfied that the evidence of disclosure given at trial was sufficient to meet the standard of proof, and I would not disturb that finding.

31 The Crown urges me to hold that given the requirements of disclosure in Stinchcombe, a trier of fact should be able to infer that a copy of the certificate was given to the accused in disclosure and it should be for an accused person to raise a Stinchcombe issue if a copy of the certificate was not given. The Crown submits that an accused should be estopped from challenging the admissibility of a certificate pursuant to s. 258 (7) absent a Stinchcombe argument. In this the Crown relies on R. v. Balen [2002] O.J. No. 5966 (O.C.J.)

32 With respect, this would place an onus on an accused that is not in keeping with s.258 (7). As noted by the Supreme Court of Canada in R. v. Noble [1977] S.C.J. No. 68:

o These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

33 Further, the Ontario Court of Appeal in Mackinnon made it clear that compliance with s. 258 (7) must be proven by the Crown on a balance of probabilities. I do not accept the Crown's argument in this regard.

El Boury and other cases demonstrate the unflinching rigidity of most courts’ approach. Consider first, the reference to the Supreme Court of Canada’s decision in Noble, a decision reasonably proximate to the “novelty” of breathalyser technology and one that was thirty-nine years removed from Justice Miller’s decision and forty-five years removed from Mr. Franco’s trial, with a Charter of Rights, a game-changing body of disclosure law and a foundational change in how courts manage their cases in between. Such an unflinching adherence to “this is how we’ve always done it” is an enormous disservice. Frozen is undoubtedly a lovely and descriptive title for a children’s film; it is orders of magnitude less charming as a descriptor of the state of the law.

58. “For every thing there is a season, and a time for every purpose under heaven.” When one is trying to make an old home suitable for current requirements, any responsible homeowner would consider whether a renovation or a re-build is the better approach in the circumstances. At a certain point, the re-build wins the argument because too many critical systems are degraded or failing or no longer up to the task. So it is with legal principles: while much of the time it is both prudent and desirable to build upon established foundations, sometimes there is just too much decay in the structure and a newly built structure embracing the realities of new technology would serve its occupants far better for decades to come. The existing, stagnant interpretation of s. 258(7)/320.32 falls in the latter category. Not only is that interpretation out of touch with modern reality and not only will its perpetuation fail to serve the public in the future, in fact its demolition date should have been decades ago. Justice Duncan wrote a wonderful obituary for the out-of-date interpretation when he released his decision in Balen, but it appears that most of the judiciary never noticed. Instead, the judicial interpretation of that section has continued to fail the public for many, many, many years.⁸

59. If I might be so presumptuous:

    a. “As is often the case, the outcome of the analysis of the problem presented on this appeal depends on one’s starting premise. I begin from the principle that the determination of criminal liability should not be akin to a game of procedural “snakes and ladders” where the outcome is unconnected to the merits of the allegation.” b. I begin from the principle that the law cannot serve society if it is allowed to become a relic of times past, ignorant of and unresponsive to present realities: “The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.”⁹ c. I begin from the principle that, “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”¹⁰ d. I begin from the principle that the modern approach to interpretation, requires that, “the words of an Act are to be read in their entire context and 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” (E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p, 87).¹¹ The entire context of s. 320.32(2) is that it is a part of a scheme intended to ensure a fair trial to persons accused of committing extremely serious offences. e. I begin from the principle that, “It is a basic principle of statutory interpretation that the court should not accept an interpretation which requires the insertion of extra wording where there is another acceptable interpretation which does not require any additional wording.”¹² Justice Duncan has said this before. It was true then. It is true now. It will be true tomorrow. There is nothing in the words of s. 320.32(2) that necessarily or logically makes proof of service an element of the offence. As Justice Duncan has pointed out, there are other acceptable interpretations of s. 320.32(2) that reflect the current reality of disclosure that are realistically consistent with s. 320.32(2) without the real danger that the historic interpretation carried from decades ago, now poses to the courts’ credibility as a game of snakes and ladders. f. I begin from the principle that, as important as the concepts of vertical and horizontal stare decisis are, they are not carved in stone. It has been established by the Supreme Court of Canada in R. v. Bedford, 2013 SCC 72, that a lower court is not bound by a previous decision of a higher court: “this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.”¹³ While Bedford was a Charter decision, it would be an absurdity to hold that a lower court can, in narrow circumstances, “overrule” the Supreme Court in interpreting the highest law of the land, the Charter, but cannot do so while interpreting a notice provision in a particular statute. While, “the threshold for revisiting a matter is not an easy one to reach” (para. 44), the achievement of that threshold in the context of s. 232.32(2) is simply impossible to ignore. g. I begin from the principle that facts matter. It has been the reality in this country for decades, at least since Stinchcombe, now thirty-one years old, that a defendant has a right to disclosure and that in an excess blood alcohol case the technician’s certificate is a central part of that disclosure, a piece of disclosure that, if missing, would be a glaring oversight to anyone other than, perhaps, the self-represented defendant. At paragraphs 97-101 of Kelly, Justice Durno addresses “the ‘disclosure” answer to the service issue – that it can reasonably be inferred that an accused received a copy of the Certificate in disclosure if there is no disclosure application” (especially when represented by counsel). He rejects that argument. With respect, in doing so he erred.

    i. First, in adverting to his own experience as counsel, he refers to a time twenty-five years or more removed from the present and falls into the overall time warp that bedevils this issue—things have changed.
    ii. Second, when he refers to his experience as a judge, he does so as a judge of the Superior Court, a court that has only passing intersection with drink-driving cases in the form of summary conviction appeals. He does not enjoy the same daily interaction with these cases that judges of the Ontario Court of Justice do. This is the court where over 98% of criminal cases begin and end, without ever darkening any other court’s door. This is where the reality of drink-driving cases is baked into a trial judge’s DNA, day in and day out, month in and month out, year in and year out.
    iii. Third, his conclusion, “That an experienced counsel whose client did not provide him or her with a copy of the Certificate and did not receive a copy in disclosure would inevitably alert the Crown to this issue through a Stinchcombe application is not an inference I am prepared to draw,” is impossible to reconcile with modern principles of trial management, which I presume are as active in the Superior Court as they are in this court. (I recall, as counsel, being faced with a sixty-page long judicial pre-trial form that counsel had to fill out in the Superior Court a decade-and-a-half ago). Whatever may be the practice in the Superior Court, however, is neither here nor there, for it is the practice and reality of the Ontario Court of Justice that governs. This court has over the past several years adopted an extremely robust process of judicial pre-trials (preceded by Crown pre-trials) in order to ensure as much as possible that Crown and defence counsel are in discussion, that disclosure has been made, that issues are narrowed and defined and that court time is not squandered. In each of the two jurisdictions in which I have presided full-time over the past decade-and-a-half, in the absence of a specific reason to conclude otherwise I would consider it dramatically more probable than not that disclosure of the certificate had been made. Indeed, so reliable is the system of disclosure that if the Crown at trial were to tender a certificate and the defence were to object on the basis of Stinchcombe after having gone through the judicial pre-trial process, I would be looking first to the defence for an explanation.
    iv. Fourth, in his consideration of the issue, Justice Durno says that, if the Crown wants to rely on the disclosure process as proof of notice (note that this analysis still cleaves to the outdated notion that notice is an element to be proved at trial), it could easily enough file an affidavit from a staff member demonstrating that fact. Again, with great respect, this misses the central point, which is that in 2022 and beyond we should not be demanding proof of notice as part of a trial, but rather should treat s. 320.32(2) as only a basis for defence to object to tendering of the certificate if they have not in fact received notice, if they are in fact caught off guard, if they are in fact blindsided. In the real world, notice is the reality; a failure of notice is the exception. This approach also burdens the prosecution with drafting an affidavit (perhaps by two or more employees if there is not to be a hearsay objection or perhaps with a business records element and the notice requirements that come with that). This beggars belief. One does not justify an increasingly inapt, indefensible and intransigent interpretative anachronism by saying to one of the parties: “we’ve done things like this for a long time, I’m sure you’ll be able to work around it”.[^14] The public we serve deserves better.
    

The reality, a quarter of the way into the twenty-first century, is that even for a self-represented defendant, never mind one represented by counsel, the odds of an excess blood alcohol case getting to trial without the defence actually having received a copy of the certificate are incredibly slim. Gainsay who dares.

60. The other reality is that the once justifiable 1960s interpretation of s. 320.32(2) being dragged into the twenty-first century does damage. Whenever a criminal court strays away from reality-based or fact-based determinations of a case, it runs the risk of losing its credibility and its legitimacy in the eyes of the public, and, when I speak of the public, I refer to an informed public. The vast majority of the evidentiary rules we apply as judges are aimed at enhancing the reliability of the evidence upon which we base our decisions. There are, undoubtedly rules that exclude reliable evidence for other reasons, for example Charter-based reasons, but such rules are based on perfectly rational notions such as respect for constitutional values of such great societal worth that we consider them in some circumstances to trump even the search for the truth. The snakes and ladders approach to drink driving law is deserving of no such respect; it calls instead for explicit repudiation. The snakes and ladders approach sends a message to the society that looks to the courts for protection against impaired drivers that a weave here and a dodge there may be all that is needed for the factually guilty to avoid their deserved consequence. It is a stain on the courts’ credibility.
61. In doing so, the courts also clutter up our own dockets. Given their volume, as drink-driving cases have grown over the years from half-day trials to two- or three-day trials (or longer depending only on the fatness of the defendant’s wallet), time to trial is necessarily pushed further out. How many judges have castigated the government for supposedly inadequate trial resources on a s. 11(b) ruling with nary a glance in the mirror at what else might be at the root of the problem? How many incarcerated defendants awaiting trial (of which Canada already has too many) have waited too long as a result?
62. If one were to engage in further introspection on the topic, one might also ask oneself the question Cicero asked: cui bono? or whom does all of this benefit: these outdated interpretations, curious defences and bloated Charter interpretations in the unique subset of criminal law that is the drink-driving industry?¹⁵ The answer is that it does not benefit all defendants equally. To the contrary, these artificial obstacles to truth-finding mostly benefit only upper economic strata of society, those who can afford the significant cost of a drink-driving trial, keeping in mind that these are charges for which legal aid is almost never going to be available, even though the consequences of conviction could be very severe. The addicted, the poor and the otherwise disadvantaged derive no benefit from judges’ curious indulgence of the impaired driving defendant at trial because they will almost certainly never be able to afford the ‘luxury’ of a trial.
63. The stagnant interpretation of s. 320.32(2) most recently exemplified in Kelly is not an interpretation that “best assures the attainment” of the objectives of the drink-driving provisions of the Code or of the fair trial interests of the defendant or society, it is not “harmonious” with the scheme, it requires the injection of additional words to convert notice from a concept of fairness into notice as a weapon to defeat justice. The persistence of that interpretation is as disturbing as it is remarkable. One might look askance at the great republic to our south where some jurists suggest with a straight face that the constitutional “right” to possess assault rifles must be seen through the eyes of musket-wielding Framers who have been dead for two centuries, but we still interpret s. 320.32 as if the Avro Arrow were in flight, as if the Red Ensign flew yet over Parliament and as if the great political contest of the day was between Prime Ministers Diefenbaker and Pearson. The world has moved on, but the law has not.
64. In the present case, the notes of the judicial pre-trial, which I treat as being as much part of the court record as I would the information and bail documents, show that the defence agreed that disclosure in this case was complete.¹⁶ In the year 2022, full disclosure on an excess blood alcohol charge cannot reasonably be construed as not encompassing disclosure of the breath certificate, except perhaps in circumstances that for present purposes would be purely speculative and so far outside the norm of professional experience as to be incapable of tipping the balance.
65. Accordingly, even if a finding of guilt on the excess blood alcohol charge were dependent on notice of the certificate, and fully cognizant of the limitations on Constable Tennant’s evidence on that point, I would be satisfied, well beyond the balance of probabilities, that the defence had notice of the breath certificate in advance of the trial and that the certificate was admissible in evidence. Any contrary conclusion would be perverse. On the evidence before me, including the judicial pre-trial record, for the defence to succeed on an objection to the certificate for lack of notice, the defence would have to call evidence to demonstrate that it had not in fact received the certificate.
66. Fully accepting the importance of stare decisis, I would find it impossible to continue to give credence to the long-standing, competing interpretation of s. 232.32(2) and its predecessors, which simply do not stand the test of time or the glare of scrutiny. Applying the words of the Supreme Court of Canada in Bedford, the changes in the law and realities of disclosure since the notice provision was first interpreted far surpass the threshold of, “significant change in the circumstances”, which is a massive understatement. Indeed, there has been a sea-change in the law and realities of disclosure such that the original interpretation not only no longer serves a purpose, it undermines the purpose by treating notice as a document rather than as a concept. A criminal court dealing with the notice issue, “must be able to perform its full role” (Bedford, para 44) and it cannot do that by cleaving to the original interpretations of s. 258(7) and ignoring the realities of the intervening four or five decades. If there is a compelling contrary argument, I have not heard it.

Justice Fergus ODonnell

Footnotes

Footnotes

1. 1R. v. Spreen, [1987] AJ No. 841 (Alta. CA)
2. 2Credit for this image belongs to Justice Doherty in R. v. H. (J.) in dissent.
3. 3This is not to say that defendants in drink-driving cases are not entitled to the full protection of the law—every defendant is entitled to a fair trial and to the presumption of innocence throughout it; it is simply to point out that drink-driving law in this country has been turned into a unique subset of criminal law where artificial, judicially-created impediments to trial on the merits hold tremendous sway, leading to many unjust outcomes for offences that are the leading criminal cause of death, by a substantial margin, every year. Our society rightly concerns itself with wrongful convictions, which are a stain on justice. When wrongful acquittals occur on an industrial scale, as in drink-driving cases, however, there is silence.
4. 4At various points in these reasons I am harshly critical of the way drink-driving law in Canada has developed, which is generally by virtue of judges frequently accepting dubious propositions made by defendants in trials, with those dubious assertions becoming entrenched in the law, often for a long time and often with little credibility or materiality to the true merits of the case. I do not want anything in these reasons to be taken as a criticism of Mr. Starkman since he is simply representing his clients’ interests in the hope that the police or Crown will step on one of the landmines judges have laid over the decades. Indeed, Mr. Starkman, while demonstrating a clear mastery of his subject matter, is always meticulous in winnowing down the many issues that might arise in a drink-driving case to only those that might reasonably gain traction. His abandonment of his Charter arguments mid-trial is a case in point.
5. 5It has been said in some of the cases that notice requirements such as this should be strictly construed because they allow the Crown to rely on an “extraordinary” method of proof. That was true. In the 1960s. However, it is no longer the 1960s and what was relatively new technology then is, sixty years—or two or three generations--later, mundane technology of clearly demonstrated reliability. While there may be very rare cases that require close judicial scrutiny of a particular analysis (breath, blood, drugs….), the reality is that most of these “certificate” methods of proof are now deservedly unremarkable, and certainly not exceptional. It would be an absurdity for the courts in the 2020s to require every breath tech and every Health Canada analyst to attend court on every case. It would be a shocking waste of public resources, in the courts, in the police services and in Health Canada to require that. Thus, the focus on an “extraordinary” evidentiary shortcut no longer has any place in the discussion and any previous conclusions based on that “extraordinariness” must be revisited in that light: if the foundation is no longer sound, that which was built upon it can no longer be relied upon unthinkingly.
6. 6The court system pays a price in a number of ways. First, when provisions for a particular offence category are interpreted in an artificial way (including disproportionate frequency of exclusion of evidence for perceived Charter violations, which is only one of the many peccadilloes of judges’ handling of drink-driving cases), that necessarily increases the extent to which such charges will be contested. The legal profession has an enormous industry of specialist lawyers who handle these offences and who are familiar with all the ins and outs of the field. One can hardly blame them for advancing dubious arguments when it is judges who gave those arguments a patina of respectability over the years. As a result, there are areas of the province where a very significant percentage of the Ontario Court of Justice’s caseload consists of drink-driving trials, in my experience in two jurisdictions more often claiming two days for trial (or three), than one day.
7. 7It bears noting that even if the notice requirement is treated as an element requiring proof at trial, the standard is only on the balance of probabilities, so even in that scenario, for the procedure of providing notice in a prisoner’s property were to fall short of the standard, it would require a court to conclude that the average defendant was more than fifty-percent likely to leave his property at the police station on release, which boggles an already boggled mind.
8. 8To the best of my knowledge, Justice Duncan’s insight has never been raised in the Court of Appeal.
9. 9Interpretation Act, R.S.C. 1985, c. I-21, s. 10.
10. 10Interpretation Act, R.S.C.1985, c.-I-21, s. 12
11. 11R. v. Lavigne, 2006 SCC 10.
12. 12Friesen v. Canada, at para. 27 (SCC).
13. 13R. v. Bedford, 2013 SCC 72, at para. 44.
14. 15In R. v. Hamzehi, 2015 ONCJ 95, [2015] O.J. NO 907 I questioned what I called the, “befuddling and gob-smacking high rate of exclusion of breath samples in Charter cases post-Grant”, a rate placed by one survey at 68% and arguably amounting to judicial nullification of the Supreme Court’s direction. “Plus ca change…..”.
15. 16The same form showed that service of notices (assuming that is a requirement, which I reject) was not admitted.
16. 14I appreciate that one simple answer for this would be for the arresting officer to have noted the service appropriately and to have testified to that service, but the error of the constable does not justify the perpetuation of a long-outdated interpretative approach that ill-serves society on a regular basis.