Court Information

Ontario Court of Justice Central West Region – Brampton, Ontario

Date: April 14, 2020

Between: Her Majesty the Queen — AND — Amet Raswan

Before: Justice B Duncan

Heard on: October 23, 24, 2019 Submissions heard: January 24, 2020 Reasons for Judgment released: April 14, 2020

Counsel:

• P. Quilty, D. Ida — Counsel for the Crown
• A. Little — Counsel for the Defendant

Reasons for Judgment

B Duncan J.:

Introduction

[1] The defendant is charged with exceed 80, offence date December 17, 2017.

[2] The case is defended mainly on Charter grounds. It is argued that the police infringed the defendant's rights under sections 8, 9, 10(a) and 10(b) at various stages of their interactions with the defendant. In addition, an argument is made contending that the presumption of identity, if still in force for transitional cases, is constitutionally invalid when paired with the new presumption of accuracy and, as a result, there is no presumption of identity at all to assist the Crown in this and other transitional cases.

Facts

[3] Around 1:45 am on December 17, 2017, PC Alszegi of the Peel police noticed a vehicle tailgating and speeding in Brampton. He pulled the car over. The defendant was the driver. The officer asked for driving documents and then asked the defendant why he had been driving so fast – specifically 45 kilometers over the limit. The defendant was apologetic and asked the officer to give him a break.

[4] While speaking to the defendant, the officer detected a smell of alcohol on his breath and formed a suspicion that "he might have consumed some alcohol". He asked him to exit the car and step over to the curb, for safety reasons. At the curb the officer asked the defendant if he had consumed any alcohol that evening, and he admitted to one drink. An ASD demand and test were given, resulting in a Fail and arrest at 1:51 am.

[5] The defendant was read the standard multi-part rights to counsel, including the advice that he could call any lawyer he wished, and that free duty counsel was immediately available. When asked if "he wanted to call a lawyer now" he replied, "No sir, I don't know anyone right now". There was no further discussion at the scene.

[6] On arrival at the police station, the defendant repeated that he did not have a lawyer. The police asked if he wanted to call duty counsel and he accepted that offer. After speaking to duty counsel, he was taken into the breath room where he confirmed that he had had that consultation. He expressed no dissatisfaction and made no further request regarding counsel.

[7] Breath samples were taken and analyzed, betraying BAC of 206 and 196 at 2:52 and 3:14 am.

[8] Following the breath testing the defendant remained in the booking area while documentation was prepared and served. At one point he was placed in a cell for about 10 minutes while the Promise to Appear was being completed. A cells video showed that he was reluctant to step into the cell and that a cells officer administered a slight push. After 10 minutes he was removed from the cell, signed the PTA and was released to his fiancé.

The Charter Arguments

Section 10(a): Right to be Informed of Reason for Detention

[9] Defence counsel Mr. Little acknowledges that any alleged breaches of 10(a) at the scene of the stop and arrest are minor and would not result in exclusion of evidence. However, he puts the points forward to augment the case for exclusion if other more significant breaches of other Charter rights are found.

[10] It is first argued that there was a breach of 10(a) in that the officer did not specifically tell the defendant that he was stopped for speeding. It is the substance of what was conveyed and what the detainee's understanding would have been that matters: R v Gonsalles [2017] ONCA 543 at para 125. In my view the conversation that occurred was sufficiently clear and specific to convey the reason for the initial stop. The failure to use the word "speeding" did not amount to a 10(a) violation.

[11] It is next argued that even if the content of what was conveyed was acceptable, the "promptly" requirement was not fulfilled because the officer first asked for the defendant's driving documents and waited for their production before giving the reason for the stopping.

[12] The temporal requirement is said to be the equivalent of "without delay" used in 10(b) which in turn has been interpreted as synonymous with "immediately": R v Suberu 2009 SCC 33, [2009] SCJ No 33 at para 41. But in the 10(b) context "immediately" has not been interpreted to mean that the first thing out of an officer's mouth must be the rights to counsel. Some leeway is permitted. Similarly, some leeway must be permitted in the 10(a) situation, otherwise an officer would have to jump from his cruiser and sprint to the stopped vehicle as soon as it came to rest to convey the 10(a) advice "immediately".

[13] In my view the defendant was informed of the reason for the stop soon enough to satisfy the temporal requirement in 10(a). Alternatively, any shortcoming in this regard was trivial and of no practical consequence.

[14] Finally, it is argued that there was a 10(a) infringement when the officer, on detecting alcohol on the defendant's breath, failed to inform the defendant that the investigative interest and reason for the detention had changed to a drinking and driving investigation. I reject this argument for much the same reason as the above. The officer's questions to the defendant as to whether he had been drinking were sufficient to convey the additional investigative interest and that questioning occurred soon enough to satisfy any immediacy requirement.

[15] As an aside, Mr. Little made the interesting submission that the defendant would have been entitled to stay in his car, not answer any questions and roll up the window to a mere crack had he known that he was being investigated for drinking and driving. I doubt that that is so, but in any event, this is not the case to deal with this issue as neither counsel was prepared to address it with case law or considered submissions and, as mentioned above, the 10(a) argument is presented as ancillary and not of primary importance in this case.

Section 8: Unreasonable Search or Seizure

[16] It is argued that the officer's expression of his suspicion – "he might have consumed some alcohol" – did not reflect the necessary subjective standard for a lawful roadside screening demand and test.

[17] The case law uniformly holds that an officer does not have to describe his suspicion in any particular way or in words that track the exact words of the section: See Kenkel: Impaired Driving in Canada – The Charter Cases 2d ed P82. Beyond that, some of the cases cited, including ones binding on me, hold that no articulation of a suspicion is required at all, provided there are objective grounds that could have supported the required suspicion and the officer relied on those grounds: R v Harris [2007] OJ No 675 (SC) at paras 40-49.

[18] In my view the demand was properly made as required by the Code. There was no section 8 violation.

Section 9: Arbitrary Detention

[19] It is argued that even though the detention throughout was lawful, the placement of the defendant in the cells was not reasonably necessary and therefore constituted arbitrary detention and a violation of section 9: R v Aucoin. 2012 SCC 66, [2012] 3 SCR 408. I am skeptical – but I am prepared to assume the argument is correct and go directly to the question of remedy.

[20] In my view, this was a brief and minor matter that would not justify a stay under 24(1) or exclusion of evidence under 24(2). A just and appropriate remedy would be some reduction in penalty, should the defendant be convicted.

Section 10(b): Right to Counsel

[21] Mr. Little for the defendant submits that where a detainee does not have a lawyer or does not know the name of a lawyer to call, the police are obliged to inform him that he has the right to search for a private lawyer and to be provided with directories and internet access in order to do so. He argues that it is a breach of Charter 10(b) to leave the detainee with the impression that he has only two options – a known private lawyer or duty counsel.

[22] This is an argument that is frequently raised in fact situations like the present case where the detainee does not have a specific counsel of choice. It also arises in cases where the detainee has a counsel of choice but is unable to reach them and is obliged to look elsewhere. Once counsel of choice can't be reached, I think the two situations are indistinguishable in principle.[1]

[23] I have dealt with this issue in other reported judgments: R v Wilson 2016 ONCJ 25; R v Shariq 2018 ONCJ 340; R v Solomon 2018 ONCJ 891. I have not accepted the argument, for reasons given in those cases.

[24] More importantly, the issue has now been dealt with by the Superior Court in R v Ruscica [2019] OJ No 2021. The facts there were indistinguishable from the present case. The defendant when given his rights to counsel answered that he did not have or know a lawyer. He was then asked if he wanted to speak to duty counsel. He accepted. McKelvey J thoroughly reviewed the decisions of the SCC, the Court of Appeal and the conflicting cases in the lower courts. He concluded (para 38):

However, where a detainee simply tells the police that he has no specific lawyer that he wants to contact and further responds affirmatively when asked if he wants to call duty counsel, there is no basis to interfere with a trial judge's conclusion that the requirements of s. 10(b) of the Charter have been met.

[25] A similar conclusion was reached more recently by Richetti J in this jurisdiction in R v Wijesuriya [2020] OJ No 855 (S.C). I am aware that in R v Doobay [2019] OJ No 6387(S.C.), Dawe J (at para 54-55) disagreed in part with Ruscica. However, the facts in Doobay were quite different from this case and the main holding was that there was a Charter 10(b) breach because the police had made inadequate efforts to reach named counsel of choice. The point of disagreement with Ruscica was a matter of obiter or at least was unnecessary to the decision. In any event I prefer Ruscica and it is consistent with the position I have taken in the past.

[26] In summary it is my view that if a detainee is told at the time of arrest that he can call any lawyer he wishes and he makes no request to call a specific lawyer or, having made such a request, is unable to reach that lawyer, there is no 10(b) violation if he is then only reminded that free duty counsel is immediately available. The police have no obligation to inform him that he also has the right to try to contact another private lawyer.

[27] This is a general rule; there can be exceptions. Every case turns on its own circumstances. There may be situations where more may be required of the police such as where the defendant has mental illness as in R v O'Shea [2019] OJ No 1178 (S.C. Schrek J). No such circumstances were present in this case. I am satisfied that there was no deficiency in the information provided to this defendant and that his Charter 10(b) rights were not violated.

Is There a Valid Presumption of Identity in Transitional Cases?

[28] Before getting to the argument, I think it is useful, for my own benefit at least, to briefly review the evolution of the relevant provisions of the Code and the important interpreting decisions from the Supreme Court of Canada.

[29] A statutory scheme providing for admissibility of breath test results and presumptions flowing from them has been part of the Criminal Code since the 1960's. It remained largely unchanged for many years. However, over the past twenty years or so the relevant sections have been amended a number of times, mainly in response to decisions of the Supreme Court of Canada.

[30] In R v St. Pierre, [1995] 1 SCR 791, the Court dealt with a situation where the defendant surreptitiously drank the contents of two small vodka bottles when she was in the washroom at the police station, just before her breath tests. She argued that this was "evidence to the contrary" rebutting the presumption in 258(1)(c) that her test results reflected her BAC at the time of driving. The Crown countered that she had to prove not only that her blood alcohol levels at the two points in time were different, but also that at the time of driving she would have been under 80.

[31] The Court adopted the analysis of Arbour JA, as she then was, dissenting in the Court of Appeal wherein she coined the labels "presumption of identity" for the declaration in subsection (c) and "presumption of accuracy" for that in subsection (g). The majority held that evidence to the contrary going to rebut the presumption of identity by showing that the BAC at the time of driving was different than when tested did NOT have to also show that the defendant would have been under 80 when driving: See Criminal Code, Appendix – Heading A

[32] Locating the presumption of accuracy in sub-section (g), which applied only to certificates, was almost certainly wrong. Such interpretation would leave a gap in the legislation with no presumption of accuracy operating in viva voce cases. The better view[2], which was eventually clarified in the statute, was that both presumptions resided in sub (c) since it would be illogical to presume the readings to accurately reflect BAC at time of driving if they were not also accurate at the time the samples were taken.

[33] Shortly after and in response to St Pierre the Code was amended to add a subsection (d.1) that created a second presumption of identity that could only be rebutted by evidence showing a drinking pattern consistent with being under 80 at the time of driving: See Criminal Code, Appendix – Heading B

[34] The addition of (d.1) resulted, in my opinion, in subsection (c) becoming largely if not completely redundant with respect to the presumption of identity. It was (d.1) that primarily defined that presumption and contained the "only real defence to it": R v Fram [2019] OJ No 2276 para 50.

[35] Ten years later, in R v Boucher 2005 SCC 72, [2005] 3 SCR 499 the Court returned to these provisions. The defendant, who blew under 100, raised a Carter defence – "I only drank 2 beer and my expert says that couldn't have put me over the limit" – to a charge of driving over 80.

[36] The legality of the Carter defence or, more precisely – its legal capability of amounting to "evidence to the contrary" – was not in issue. The Boucher decision focussed mainly on the evidence, and the trial judge's approach to and findings with respect to the credibility of the accused. The Court split 5:4 as to whether the trial judge erred.

[37] Significantly however, Boucher at least implicitly recognized the validity of a Carter defence. Not only was the defence given implicit recognition, it was bolstered by both majority (para 43) and minority (para 64) holding that the breath test results could not be considered in weighing the defence evidence. This dealt the prosecution a near fatal blow for future cases. Without the test results themselves, there was usually no evidence that the accused did not just have two beers.

[38] The decision in Boucher seemed to provide the impetus to Parliament to re-examine and strengthen what had become a rather porous net to combat the scourge of the drinking driver.

[39] In Bill C2, in force July 2 2008, Parliament enacted sweeping changes to the legislation. Most significantly, a new section 258(1)(c) replaced the wide open "evidence to the contrary" with a single strictly-defined way that the presumption could be rebutted. Breath test results taken under specified conditions were conclusive proof of BAC both at the time of testing and the time of driving in the absence of evidence tending to show three things: i) that there was a machine or operator error, ii) that the error resulted in a false reading above 80 and iii) that the true BAC would have been below 80 at the time of the offence: See Criminal Code, Appendix – Heading C.

[40] These new requirements effectively eliminated the Carter defence. To leave no doubt, the amendments drove a stake through Carter's heart by adding section (d.01) specifying that machine or operator error could not be proven indirectly by Carter evidence. Finally, a new sub-paragraph was added to the presumption of identity in (d.1) providing that the drinking pattern had to be consistent both with being under 80 at the time of driving and the test results.

[41] The constitutionality of these provisions came before the Supreme Court in R v St-Onge Lamoureux 2012 SCC 57, [2012] 3 SCR 187. It was argued that these sections – 258(1)(c), (d.o1) and (d.1) – infringed Charter section 7 (fundamental justice), Charter section 11(c) (self-incrimination) and Charter section 11(d) (fair trial and presumption of innocence). But in the result, all sections were found to either not infringe any of those Charter rights or if they did, they were reasonable limits. With respect to 258 (1)(c) the Court identified the ability to rebut the presumption as crucial to its constitutionality but considered that the burden to establish the second and third requirements was not justified. Its solution was to excise the last two items, leaving a law that infringed 11(d) but was a reasonable limit thanks substantially to its rebut-ability. See struck out words in Criminal Code 258(1)(c) Appendix – Heading C.

[42] What remained was a section that presumed the breath tests results were accurate at both the time of testing and driving unless the defendant established or raised a reasonable doubt that there was machine or operator error. While this was constitutionally acceptable, it wasn't very satisfactory. The Crown didn't have to prove much at all before the defendant was saddled with the difficult burden of essentially disproving the reliability of the results.

[43] In December 2018 the old sections were repealed and a substantially revised scheme came into effect. Most significantly, the crime was re-defined as being 80 or over within 2 hours of driving, not at the time of driving. The necessity of relating breath test results back in time accordingly disappeared so no presumption of identity was needed or enacted in the new legislation. Further, the new presumption of accuracy – which was to have immediate application to transitional cases – was substantially altered. The Crown was required to prove specified conditions directed to establishing reliability, whereupon the accuracy of the resulting breath test results would be conclusively established. There was no allowance for rebuttal of this conclusion including by showing machine or operator error: See Criminal Code, Appendix – Heading D.

[44] Almost immediately a problem was recognized with respect to transitional cases, such as the present one: The Crown still had to prove that the accused was over 80 at the time of driving in those cases. But on coming into force of the new legislation, and repeal of the old, there was arguably no presumption of identity remaining to assist in relating breath test readings back to the time of driving. The argument and conflicting decisions are well known, and the debate will not be rehashed here: R v Shaikh 2019 ONCJ 157, [2019] OJ No 1528. A majority consensus eventually emerged that the former presumptions of identity, though repealed, continued to survive like zombies for transitional cases, along with the new presumption of accuracy.

[45] Importantly for present purposes, the survival of the presumptions of identity would obviously include the survival of any provision for rebuttal of those presumptions. So, for the surviving POI in subsection (c), the ability to rebut with evidence of mechanical or operator error would continue. For the surviving POI in (d.1), the ability to rebut with a "last drink" or "interim drink" defence, consistent with the readings and being under 80 while driving, would continue.

The Argument

[46] The defence argues that the new presumption of identity cannot live with the new presumption of accuracy. This is because the Court in St Onge determined that in section 258(1)(c) the combined presumption of identity and presumption of accuracy passed section 1 scrutiny only because it could be rebutted by evidence of a mechanical or operational error. The new section 320.31 eliminates that ability to rebut and accordingly the new combination is not constitutionally valid. It follows that there is therefore no presumption of identity at all to apply in transitional cases. The Crown was therefore obliged in this case to prove identity with an expert. It did not do so. Accordingly, the charge must be dismissed.[3]

[47] The argument is intriguing, well developed and presented with Mr. Little's characteristic vigour and impressive command of the case law. However, I cannot agree with it.

[48] First, I do not think it is analytically sound to attempt to transpose constitutional conclusions reached with respect to one statutory scheme to another entirely different scheme. The Court's holding in St Onge that the ability to rebut was crucial to that legislation does not mean that the ability to rebut must be present in any and all legislation dealing with the same subject matter.

[49] The presumption of accuracy[4] in subsection 258(1)(c) considered by the Court in St Onge was very suspect with respect to section 11(d). That POA arose upon proof by the Crown of almost nothing that would support a conclusion of the accuracy that the subsection then presumed. That unsupported presumption was found to be a prima facie breach of 11(d): (para 27). It might be considered to have been a very fortunate outcome for the Crown that the Court then determined that it was salvageable merely by the allowance of a narrow window to present a difficult rebuttal.

[50] But the new section 320.31 is completely different. The onus is put on the Crown to prove circumstances of reliability. While there may be no specific allowance for rebuttal as such, there is certainly room to defend, challenge and dispute – including by calling any relevant admissible defence evidence – whether the Crown has satisfied its burden. Structurally at least, it is no different from any other criminal offence. If the Crown proves a fraudulent taking without consent or colour of right, then theft is conclusively proven. Rebuttal does not enter the picture.

[51] Whether the new section goes constitutionally far enough in the requirements it puts on the Crown is not a question that's before me. It suffices to say that the new regime is so different from the one considered in St Onge, that any pronouncement re the need for rebut-ability made with respect to the former section cannot be assumed to apply to the new. Again, that will have to be litigated when and if a constitutional challenge is brought.

[52] Alternatively, even if the rebut-ability requirement must be found in the new scheme, it is my view that the requirement is present. Zombie section (d.1) and its POI continue to apply, together with its allowance for rebut-ability. As mentioned above, that section contains the "only real defence to [the presumption of identity]".[5] Even if the POI in 258(1)(c) is invalid, as argued, the POI in (d.1) survives and is all the Crown needs to prove a transitional case.

[53] I expressed the view above (para 34) that the POI in 258(1)(c) became redundant upon the enactment of (d.1). But to the extent that there may be any vestigial additional role for that POI, it too would retain its accompanying point of rebut-ability. The result then would be that, in transitional cases, the defendant can continue to rebut the presumption of identity in 258(1)(c), by showing mechanical or operator error. He cannot however, rebut the POA by such a showing. Illogical as that might be, since those errors have little if any relevance to identity, it is no more illogical than the way the POI in sub-section (c) operated before the new amendments.

[54] The defence will say that the ability to rebut the presumption of identity is not enough – there must be some allowance to rebut the presumption of accuracy as well. But this just brings the argument back to the question of the constitutionality of the new section 320.31 which again, is not a question that is before me.

[55] Finally, I do not see the pairing of the old POI with the new POA as incompatible, either constitutionally or functionally. They do not overlap, interfere or contradict each other but rather operate on parallel tracks, without contact much less collision. If the Crown proves the requirements of s 320.31 it has the benefit of an irrebuttable presumption of accuracy. But in transitional cases it must also prove the requirements of (d.1) or old sub (c) to obtain the advantage of a presumption of identity.[6] That presumption can then be rebutted by the defence as provided in those sub-sections, if it is able to do so.

Conclusion

[56] The arguments raised by the defence are dismissed.[7]

April 14, 2020

B Duncan J

Appendix

A: Criminal Code at time of St Pierre (1995)

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under any of subsections 255(2) or (3)

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [not in force]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [not in force]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

B: The post St. Pierre amendment adding section (d.1)

(d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

C: Criminal Code at time of St. Onge Lamoureux (2012)

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2)

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, c. 20, s. 3]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things -- that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 ml of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed;

(d.01) For greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of

(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed;

(d.1) If samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

(ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

D: Criminal Code since December 2018

Breath samples

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.

Footnotes

[1] The alleged breach is often described in these cases as "failure to present a third alternative" or "the other lawyer option" or "steering, directing or funnelling the detainee to duty counsel".

[2] This was the view of the minority in the 5:4 St Pierre decision: see pars 75-80. Which side was correct in St Pierre is now a matter of historical interest only since the legislation changed in 2008, placing both presumptions in (c). The binding clout of the majority view disappeared with that amendment.

[3] Defence counsel characterizes this argument as one of statutory construction although it has constitutional components. I agree with that characterization.

[4] Since the legislation had blended the POI with the POA in sub (c), the Court's analysis was, in theory, an analysis of both presumptions or at least their blended effect. However, the Court's analysis discloses a singular focus on the POA. In fact, the Court effectively said that the POI caused it no concern. Para 28

[5] R v Fram [2019] OJ No 2276 para 50

[6] I respectfully disagree with Justice Douglas on this point in R v Fram supra at para 41. I do not think 320.31, which deals exclusively with the POA, supersedes any aspect of the POI that must be proven in transitional cases. I prefer the approach of the Crown as summarized in the Fram case: see para 36.

[7] Due to the pandemic, pronouncement of a verdict will be deferred until this case is next in court.