Court Information

Ontario Court of Justice

Date: 2019-04-26

Court File No.: Kitchener Info #18-405 & 18-6622

Parties

Between:

Her Majesty the Queen

— and —

Andrew McAlorum

Judicial Officer and Counsel

Before: Justice Scott Latimer

Heard on: April 16 & 25, 2019

Reasons for Decision released on: April 26, 2019

Counsel:

• Andrew Paul & Michael Michaud — counsel for the Crown
• Alec Fiszauf & Karl Toews — counsel for Mr. McAlorum

Decision

LATIMER J.:

[1] Introduction

[1] Change is difficult. Changes to criminal legislation – in particular, the evidentiary provisions related to the prosecution of impaired driving – have historically presented challenges in the application of statutory law to cases that were already charged and in the system when amendments are made. These cases, called transitional cases, repeatedly trigger inquiries into what law applies – old or new – at trial.

[2] These inquiries are entirely predictable whenever such legislation is amended. Statutory amendments do not occur in a vacuum; there will always be cases that are ongoing at the time of amendment. The Interpretation Act contemplates such situations and has attempted to account for them. Factual examples of similar interpretative exercises are found in the appellate jurisprudence in this particular corner of drinking and driving law.

[3] The issue to be resolved in this ruling is whether the presumption of identity – previously contained in the since-repealed section 258 Code provision, which has been replaced with the current Part VIII.1 – still applies in the current trial. Different members of my court have come to different conclusions on this particular issue. With respect to the contrary view, I conclude that the presumption of identity continues to apply to prosecutions under the former s. 253(1)(b) Code offence. It applies in the present case. In the circumstances, the application for a directed verdict is dismissed.

I. RELEVANT BACKGROUND

[4] A lengthy review of the trial evidence is not presently required. On September 8, 2018, Andrew McAlorum was stopped by the police in the mid-morning for an alleged speeding infraction. His detention quickly morphed into an impaired driving investigation. After failing a roadside screening test, Mr. McAlorum was arrested and brought to a police station for further testing. He subsequently provided two breath samples into an Intoxilyzer device, registering readings of 106 and 96 milligrams of alcohol in 100 millilitres of blood, respectively. He was charged under section 253(1)(b) of the Code with driving with a blood alcohol concentration that exceeded 80 mg/100mL. At the close of the Crown's case, he applied for a directed verdict on the basis that the former presumption of identity is not available to the trier of fact and, therefore, there is no admissible evidence of his blood alcohol concentration (BAC) at the time of driving.

[5] On December 18, 2018, federal legislation came into force that amended the Criminal Code, replacing sections 249 to 261 with the new Part VIII.1, "Offences Relating to Conveyances". The relevant offence provisions were materially changed, as were the related evidentiary provisions intended to assist in providing reliable, efficient proof of an accused's blood alcohol concentration at the time of an alleged offence.

[6] Under the former s. 258(1)(c) provision, the Crown was the beneficiary of evidentiary shortcuts that are referred to as the presumptions of accuracy and identity. As the Supreme Court of Canada explained in R. v. Alex, 2017 SCC 37, at paras. 18-19:

[The provision] provides two inferences that may be presumptively drawn from the certificate. The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused's blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.

The second inference, known as the presumption of identity, provides that the breath test results also identify the accused's blood-alcohol concentration at the time of the alleged offence. This presumption avoids the need to call an expert toxicologist to interpret or "read-back" the breath readings with a view to identifying the accused's blood-alcohol concentration at the time of the alleged offence.

[7] Mr. McAlorum is charged with driving with a BAC over 80mg/100mL, contrary to s. 253(1)(b) of the Code. Had his arrest occurred post-December 18, 2018, he would have been charged under s. 320.14(1)(b), which indicates that "everyone commits an offence who... has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood". It can be seen that the new provision does not concern itself with a presumption of identity, as the relevant BAC is at the time of testing (as long as testing occurs within two hours), not the time of driving. A new presumption of accuracy is, however, included in the Part VIII.1 provisions. Bill C-46 expressly indicates that this presumption of accuracy, found in s. 320.31(1) of the Code, applies to transitional cases like the present one.

[8] To review, Mr. McAlorum is charged with an offence that requires proof of his BAC at the time of driving. The traditional method of proving this fact is no longer in the Code, as the relevant provisions have been overhauled and redrafted, creating, inter alia, a new offence that renders the presumption of identity irrelevant. There is no doubt that the presumption of accuracy requirements found in s. 320.31(1) apply; the question is whether, in this transitional circumstance, the repealed presumption of identity nevertheless still applies to trial proceedings held in April 2019. The starting point for this inquiry, to my mind, is Parliament's express intention in proclaiming Bill C-46.

II. PARLIAMENT INTENDED TO SIMPLIFY, NOT COMPLICATE, PROOF OF BAC

[9] The preamble to Bill C-46 Act to amend addresses Parliament's intention in its wholesale rewriting of the driving offence provisions in the Criminal Code. There is a pressing societal interest in curtailing the death and destruction wrought by impaired driving in Canada. Parliament seeks to achieve this objective by equipping peace officers with legal tools suitable to the task of identifying and investigating suspected impaired drivers. Further – and importantly, for present purposes – the preamble expressly adverts to the litigation process, stating that it is "important to simplify the law relating to the proof of blood alcohol concentration". The words of a preamble assist in interpreting the purpose and object of a piece of legislation: see Interpretation Act, s. 13.

[10] The 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. There is no express mention of the presumption of identity in the Act to amend's transitional provisions. It is worth noting that there is also no mention of the s. 253 offence provisions, although everyone in this proceeding agrees that Mr. McAlorum is properly charged, notwithstanding the fact that s. 253 – like s. 258 – has been repealed by the Act.

[11] As noted at the beginning of this ruling, there are prior examples of legislative change to BAC evidentiary provisions creating unforeseen complexities when transitional cases reach court: see R. v. Ali and R. v. Copley (1988), 43 C.C.C. (3d) 396 (Ont. C.A.). These judgments provide examples of these complexities and, in my view, a ready answer to the present problem.

[12] Very simply stated, the issue in Ali was that the law permitting presumptive proof of BAC had changed between Mr. Ali's arrest and trial. At the time of his arrest, only one breath sample was required. A subsequent legislative change required two samples to trigger the statutory presumptions. Obviously, it was too late for the police to go back and obtain a second sample from Mr. Ali. The Supreme Court held that the new provision only applied prospectively, as it could not be adapted retrospectively to prior investigations that involved the seizure of only one breath sample. The Court concluded that Parliament did not intend to create a transitional class of cases where no evidentiary presumptions applied: see Ali, supra, at pp. 239-41.

[13] Eight years later, a similar circumstance confronted the Court of Appeal in R. v. Copley. The statutory presumptions had once again changed, with the old provision repealed and a new one taking its place. Mr. Copley asked the Court to find that, because he had been charged under the old scheme, which had since been repealed, no evidentiary presumptions were available to the Crown at his trial. This would mean that if the prosecution wished to prove the allegation, it would have to adduce testimonial evidence at trial, presumably via an expert toxicologist. This argument succeeded at trial but failed in the Court of Appeal. Justice Grange, writing for the panel, noted as follows:

I do not believe that Parliament had any such intention which would create a hiatus for proof of blood alcohol level for a very limited period and for a very limited number of persons charged i.e. those alleged to have committed an offence prior to December 4, 1985 and who have been tried subsequently. I concede however, as I must, that however unpalatable that conclusion might be it must be reached if the statutory form of the enactment leaves no other choice. In my opinion, s. 207 clearly shows an intention to preserve the evidentiary value of the certificate made in accordance 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.]

[14] The situation in Copley was that the new legislation expressly preserved certain evidentiary provisions but not others. The Court ruled, however, that in the absence of an express intention to deny transitional cases the presumption of identity, the sensible solution – statutorily mandated by the referred-to provisions of the Interpretation Act – was to apply that aspect of the repealed law in the transitional context.

[15] In my view, a similar approach is required here. The fact that the Act to amend expressly applies the new presumption of accuracy retrospectively does not mean that the presumption of identity is not preserved for transitional cases prosecuted under the old s. 253(1)(b) offence provision. Indeed, the language of the preamble, stressing the importance of simplifying the law in this area, strongly suggests that this is what Parliament intended.

[16] Impaired driving cases occupy a significant segment of the provincial court's docket, and place "a substantial burden on the criminal justice system" generally: see Alex, supra, at para. 1. Perhaps because of the combination of scientific evidence, warrantless police powers and significant penalties, litigation in these cases can quickly become complicated and time-consuming. The history of these evidentiary provisions has been an attempt to create a fair and efficient approach to the forensic issues that arise during attempts to reliably ascertain a motorist's BAC at the time of driving. The new provisions are a further attempt in this regard; the fact of their proclamation is no reason to take a contradictory approach to transitional cases that straddle the timeline of the old and new provisions.

[17] My colleague in Shaikh, 2019 ONCJ 157, relies on the availability of toxicological evidence to fill any gap caused by the demise of the presumption of identity. While I acknowledge the theoretical availability of a section 657.3 affidavit, experience teaches that live witnesses – often scientists from the Centre of Forensic Sciences – are almost always required to attend in person, either to testify, consult, or explain their report. Ontario is a big province, and 'Over 80' cases occur daily in every region, city and town. It is not in the public interest to adopt an approach that requires scientists to attend court on a daily basis, nor is it consistent with the principles of fairness and efficiency that have animated the last sixty years of drinking and driving legislation.

[18] In conclusion, we either learn from history or are doomed to repeat it. Each time these provisions have been amended, interpretive challenges and arguments have followed, consuming considerable court resources at every level of court. Each time, in the end, an appellate court has applied the statutory law to transitional cases in a sensible manner – adapting the old to fit with the new – in order to avoid absurd results. In my view, requiring expert toxicological evidence in every transitional case meets the legal definition of absurdity, and is not mandated by an application of the relevant statutory instruments.

III. DISPOSITION

[19] The s. 258(1)(c) presumption of identity continues to apply to s. 253(1)(b) Code prosecutions. The application for a directed verdict is dismissed.

Released: April 26, 2019

Justice Scott Latimer

Footnotes

[1] To my knowledge, R. v. Shaikh, 2019 ONCJ 157 and R. v. Jagernauth, 2019 ONCJ 231 have held that the presumption of identity does not apply to transitional cases, while R. v. Porchetta, 2019 ONCJ 244 and R. v. Sivalingam, 2019 ONCJ 239 hold that it does apply.

[2] Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances), and to make consequential amendments to other Acts, S.C. 2018, c. 21.

[3] See Criminal Law Amendment Act, S.C. 1985, c. 19, s. 36: "The heading preceding section 233 and sections 233 to 240.3 of the said Act are repealed and the following substituted therefor". This language – which the Court in Copley was satisfied permitted the application of ss. 35 and 36 [now 43 and 44] of the Interpretation Act – is nearly identical to ss. 14 & 15 of the Act to amend.

[4] See review of this legislative history in Porchetta, supra, at paras. 30-33.

[5] Rizzo & Rizzo Shoes Ltd. (Re), [1997] 1 S.C.R. 27, at 43.