Her Majesty the Queen v. Charette

Her Majesty the Queen v. Tran [Indexed as: R. v. Charette]

94 O.R. (3d) 721

Court of Appeal for Ontario,

Weiler, Moldaver and Rouleau JJ.A.

April 15, 2009

Criminal law -- Drinking and driving offences -- Driving "over 80" -- Reasonable and probable grounds -- Crown may rely on presumption of identity in s. 258(1)(c) of Criminal Code where accused complies with breathalyzer demand without the Crown proving that there were reasonable and probable grounds for demand if accused makes no Charter application challenging admissibility of results or seeking their exclusion pursuant to s. 24(2) -- Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(c).

The accused were separately convicted of driving "over 80". In each case, the accused called no evidence and made no Charter application. In both cases, the trial judge found that the arresting officer lacked reasonable and probable grounds for the breathalyzer demand but that, absent a Charter application, the Crown is entitled to avail itself of the presumption of identity in s. 258(1)(c) of the Criminal Code where the accused complies with a breathalyzer demand, regardless of the lack of reasonable and probable grounds. The summary conviction quashed the convictions. He accepted that the existence of reasonable and probable grounds to make a breathalyzer demand is not an issue where an accused complies with the demand and does not move under the Charter to exclude the certificate of analysis. However, he found that the reference to a "demand" in s. 258(1)(c) must mean a valid demand, i.e., one made on reasonable and probable grounds, and that, since the Crown had failed to prove the existence of reasonable and probable grounds to make the breathalyzer demand, the Crown should not be entitled to rely on the presumption of identity under s. 258(1)(c). The Crown appealed.

Held, the appeals should be allowed.

The decision of the Supreme Court of Canada in R. v. Rilling is still good law and was dispositive of the issue raised in these appeals. Unless the accused brings a Charter application, the Crown need not prove that the officer had reasonable and probable grounds for making the demand in order to rely on the presumption of identity in s. 258(1)(c) if the accused has complied with a demand made under s. 254(3) of the Code. To hold otherwise, as did the summary conviction appeal court, would result in the Crown calling evidence of the existence of reasonable and probable grounds in every case to avoid the possibility that the accused could argue for the first time during closing submissions that the presumption of identity did not apply because the officer did not have reasonable grounds for the demand. If the accused brings a Charter motion challenging the admissibility of the results or seeking to prevent the Crown from relying on the principle of identity, the Crown will know that a s. 8 breach is alleged and the trial can proceed more efficiently. This dichotomy between a case in which the accused brings a Charter application and one in which the accused does not, strikes a fair balance between the rights of the accused and the interests of society.

APPEAL by the Crown from the order of Vogelsang J., [2008] O.J. No. 1016, 78 W.C.B. (2d) 64, 2008 11032 (S.C.J.) allowing appeals from convictions on charges of driving "over 80".

Cases referred to R. v. Rilling, 1975 159 (SCC), [1976] 2 S.C.R. 183, [1975] S.C.J. No. 72, 60 D.L.R. (3d) 128, 5 N.R. 327, [1975] 6 W.W.R. 626, 24 C.C.C. (2d) 81, 31 C.R.NS. 142, affg 1973 ALTASCAD 22, [1973] A.J. No. 104, [1973] 3 W.W.R. 319, 11 C.C.C. (2d) 285, folld [page722] R. v. Searle, [2006] N.B.J. No. 533, 2006 NBCA 118, 308 N.B.R. (2d) 216, 215 C.C.C. (3d) 374, 40 M.V.R. (5th) 207, 72 W.C.B. (2d) 255, not folld R. v. Gundy, [2008] O.J. No. 1410, 2008 ONCA 284, 235 O.A.C. 236, 57 C.R. (6th) 369, 77 W.C.B. (2d) 309, 231 C.C.C. (3d) 26, 64 M.V.R. (5th) 173, 170 C.R.R. (2d) 51 (C.A.), consd Other cases referred to R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, 176 N.R. 81, [1995] 3 W.W.R. 457, J.E. 95-256, 53 B.C.A.C. 1, 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 26 C.R.R. (2d) 132, 8 M.V.R. (3d) 75; R. v. Boeck, [2007] O.J. No. 1726, 50 M.V.R. (5th) 175, 73 W.C.B. (2d) 789, 2007 14926 (S.C.J.); R. v. Boucher, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, 2005 SCC 72, 342 N.R. 42, J.E. 2005-2228, 202 C.C.C. (3d) 34, 36 C.R. (6th) 32, 25 M.V.R. (5th) 1, 67 W.C.B. (2d) 473, EYB 2005-98282; R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840, 91 O.A.C. 40, 107 C.C.C. (3d) 97, 19 M.V.R. (3d) 197, 31 W.C.B. (2d) 85 (C.A.); R. v. Richfield, 2003 52164 (ON CA), [2003] O.J. No. 3230, 175 O.A.C. 54, 178 C.C.C. (3d) 23, 14 C.R. (6th) 77, 109 C.R.R. (2d) 295, 43 M.V.R. (4th) 231 (C.A.); R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23, 122 D.L.R. (4th) 619, 178 N.R. 241, 79 O.A.C. 321, 96 C.C.C. (3d) 385, 36 C.R. (4th) 273, 29 C.R.R. (2d) 273, 9 M.V.R. (3d) 1; R. v. Wilding (2007), 88 O.R. (3d) 680, [2007] O.J. No. 4776, 2007 ONCA 853, 55 M.V.R. (5th) 10, 162 C.R.R. (2d) 372, 233 O.A.C. 47, 229 C.C.C. (3d) 507, 77 W.C.B. (2d) 82; R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, 61 D.L.R. (4th) 725, 95 N.R. 149, [1989] 4 W.W.R. 385, J.E. 89-827, 58 Man. R. (2d) 63, 50 C.C.C. (3d) 566, 69 C.R. (3d) 281, 8 W.C.B. (2d) 459 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(1), (2) Criminal Code, R.S.C. 1985, c. C-46, ss. 253, (1)(b), 254(3) [as am.], (5), 258(1)(c), (g)

David Friesen and James V. Palangio, for appellant. Robert Sheppard, for respondents.

The judgment of the court was delivered by

MOLDAVER J.A.: --

Overview

[1] On June 9, 2006, MacMillan J. of the Ontario Court of Justice convicted the respondent Charette of driving "over 80". On August 9, 2006, in a separate unrelated trial, O'Dea J. of the Ontario Court of Justice convicted the respondent Tran of driving "over 80". Charette and Tran appealed their convictions to the summary conviction appeal court. As their appeals involved a common legal issue, they were heard together. On March 17, 2008, Vogelsang J. of the Superior Court of Justice allowed their appeals and ordered new trials for each. [page723]

[2] The Crown applies to this court for leave to appeal and if leave is granted, seeks to have the respondents' convictions restored. For reasons that follow, I would grant leave to appeal in both cases, allow the appeals and restore the convictions imposed at trial.

Background

[3] The issue common to both appeals centres on two provisions of the Criminal Code, R.S.C. 1985, c. C-46: ss. 254(3) and 258(1)(c). These provisions have been amended since the respondents' trials, but the amendments have no bearing on the common issue. The provisions that were in force when the respondents were tried are as follows:

254(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253 [impaired driving or driving "over 80"], the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (a) such samples of the person's breath as in the opinion of a qualified technician . . .

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. . . . . .

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 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 . . . . . (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 [page724] 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;... [Emphasis added]

[4] The presumption embodied in s. 258(1)(c) is commonly referred to as the presumption of identity: see R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23. If applicable, the presumption of identity relieves the Crown from having to prove that the accused's blood alcohol level at the time of the offence was the same as at the time of testing. In those cases where the presumption of identity is not available, the accused's blood alcohol level at the time of the offence must be proven in the ordinary way: see R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840, 107 C.C.C. (3d) 97 (C.A.). Normally, this will require expert testimony from a toxicologist.

[5] Although not strictly at issue in these appeals, s. 258(1)(g) of the Code is also relevant to the resolution of the common issue. At the time of the respondents' trials, that section provided:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), . . . . . (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, . . . . . (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;... [Emphasis added] [page725]

[6] The presumption in s. 258(1)(g) is commonly referred to as the presumption of accuracy: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, 202 C.C.C. (3d) 34. Where this provision applies, it allows the Crown to introduce the breathalyzer certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate.

The Issue

[7] With these statutory provisions in mind, the issue common to both appeals may be stated as follows:

Absent a Charter application, where an accused has provided breath samples pursuant to a demand made under s. 254(3) of the Code in circumstances where the peace officer did not have reasonable and probable grounds for making the demand, is the Crown entitled to avail itself of the presumption of identity in s. 258(1)(c) of the Code?

[8] At the respondents' trials, the trial judges answered this question in the affirmative. The summary conviction appeal judge came to the opposite conclusion, as did the New Brunswick Court of Appeal in R. v. Searle, 2006 NBCA 118, [2006] N.B.J. No. 533, 215 C.C.C. (3d) 374 (C.A.). As indicated, I am respectfully of the view that the trial judges answered the question correctly.

Proceedings Below

R. v. Charette

(a) The offence

[9] At 3:45 a.m. on September 9, 2005, Constable Labadat stopped Charette's vehicle, which he had noticed some two hours earlier parked at a local bar. The officer smelled alcohol on Charette's breath and Charette admitted to having consumed one beer. The officer then made a roadside demand and when Charette blew into the approved screening device, it registered an "F" for fail. Charette was arrested for driving "over 80" and a demand was made for samples of his breath. Charette later supplied two breath samples to a qualified technician, registering readings in each instance of 130.

(b) The trial

[10] Charette was convicted of driving "over 80" after a short trial in which he called no evidence and made no Canadian Charter of Rights and Freedoms applications. The Crown's case consisted of Constable Labadat's testimony and the certificate of [page726] analysis of the qualified technician, entered as an exhibit, establishing the amount of alcohol in Charette's blood.

[11] In his reasons for judgment, the trial judge observed that Constable Labadat had failed to "mention" why he "thought there were reasonable and probable grounds to believe that the defendant was committing an offence contrary to s. 253". According to the trial judge, since there was "nothing in the officer's evidence . . . that indicates what he believed was the significance of . . . failing . . . the roadside device test", the Crown had failed to establish "the existence of a belief based on reasonable and probable grounds" as required for a valid demand under s. 254(3).

[12] Nonetheless, since Charette had not brought a Charter application to exclude the results of the breath test, the trial judge felt obliged to apply the presumption of identity in s. 258(1)(c) and to receive the Intoxilyzer readings without further evidence. In so concluding, he considered the Supreme Court of Canada's decisions in R. v. Rilling, 1975 159 (SCC), [1976] 2 S.C.R. 183, [1975] S.C.J. No. 72, 24 C.C.C. (2d) 81 -- a pre-Charter case in which the majority held that where an accused person is charged with driving "over 80", the absence of reasonable and probable grounds to make the breath demand does not render the certificate inadmissible where the demand has been acceded to -- and R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, 95 C.C.C. (3d) 193 -- where Cory J., writing for himself and two other judges, stated in obiter that Rilling is still good law, and that, absent a Charter challenge to the admissibility of the results of a breath demand, the Crown need not establish the existence of reasonable and probable grounds.

[13] Noting that the majority in Bernshaw did not discuss the continued applicability of Rilling, the trial judge concluded that Rilling still applied and that he was therefore bound to receive the Intoxilyzer readings and allow the presumption of identity in s. 258(1)(c) to operate. Accordingly, he convicted Charette on the "over 80" charge.

R. v. Tran

(a) The offence

[14] Shortly after 2:00 a.m. on December 10, 2005, Constable Skinner saw Tran make a right turn on a red light without stopping. She pulled his vehicle over and detected a very strong odour of alcohol on his breath. Tran admitted to drinking two beers. [page727]

[15] On the basis of those three factors, the officer arrested Tran for impaired driving and demanded samples of his breath. Tran provided two breath samples to a qualified technician, registering readings in each instance of 140. He was charged with impaired driving and driving "over 80".

(b) The trial

[16] After a brief trial in which the defence called no evidence and made no Charter applications, Tran was convicted of driving "over 80". He was acquitted on the impaired driving charge.

[17] The Crown's case consisted of Constable Skinner's testimony and the certificate of analysis of the qualified technician, filed as an exhibit, establishing the amount of alcohol in Tran's blood.

[18] In his reasons for judgment, the trial judge found that Tran had "the best flat-out case for lack of reasonable and probable grounds [to make a demand under s. 254(3)] that I can imagine". However, since there was no Charter application before the court, he felt "stuck" because "if a defendant wishes to challenge reasonable and probable grounds that has to be done with a s. 8 Charter motion". In so concluding, the trial judge felt bound by Rilling, supra, which he characterized as "one of the worst rulings" because "s. 254 dictates that reasonable and probable grounds have to precede other events that would lead to a conviction".

[19] Decrying cases from the Ontario Court of Appeal and the Supreme Court of Canada as having "gone to great lengths and stretched . . . to say that Rilling has never been overruled", the trial judge opined that "Rilling has no place in 2006". He then invited counsel to appeal his ruling because in his view

. . . we are faced daily with these huge volumes of Charter materials that really are not necessary only because other courts refuse to deal with what everybody understands is a problem. But in this case the Charter motion is not here and the Crown is still entitled, rightly or wrongly, to rely on the Rilling principle.

[20] Following Rilling, albeit reluctantly, the trial judge applied the presumption of identity and concluded that Tran was guilty of driving "over 80".

The summary conviction appeal

[21] Charette and Tran appealed their convictions for driving "over 80" to the summary conviction appeal court. Their appeals were heard together and both Charette and Tran were represented by the same counsel (not Mr. Sheppard). [page728]

[22] Charette and Tran raised two grounds of appeal. First, they argued that Rilling had been superseded by the Charter and was no longer good law. Since the Crown had failed to prove that the arresting officers had reasonable and probable grounds to make the breath demands, the demands were invalid and the certificates should have been excluded.

[23] The summary conviction appeal judge rejected that argument. He held that the majority judgment in Rilling continues to govern and that the existence of reasonable and probable grounds to make a demand under s. 254(3) is not an issue where an accused complies with the demand and does not move under the Charter to exclude the certificate.

[24] Second, Charette and Tran pointed to the opening words of s. 258(1)(c) -- "where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) . . ." -- and argued that the reference to a "demand" must mean a valid demand, namely, one made by a peace officer who "believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed" an offence under s. 253. Accordingly, Charette and Tran argued that since the Crown had failed to prove the existence of reasonable and probable grounds to make the breath demand, the Crown should not be entitled to rely on the presumption of identity under s. 258(1)(c).

[25] The summary conviction appeal judge agreed with that submission. In so concluding, he declined to follow R. v. Boeck, [2007] O.J. No. 1726, 2007 14926 (S.C.J.), a decision in which Glass J. of the Ontario Superior Court of Justice had found that absent a Charter argument, Rilling [at para. 24] "still applies" and [at para. 25] "if the breath samples could be introduced into evidence, then the presumption [of identity] applies". In refusing to adopt the latter proposition as a correct statement of the law, the summary conviction appeal judge stated, at para. 12:

With respect, that statement does not deal with or recognize Parliament's words at the beginning of s. 258(1)(c), ' . . . taken pursuant to a demand made under subsection 254(3) . . .'. I think it is wrong to blend the notion of admissibility of the certificate (probably properly so if The Queen v. Rilling has survived) with the statutory requirements of a discreet subsection dealing with a different thing, a practical evidentiary tool available, in certain circumstances, to the Crown.

[26] The summary conviction appeal judge therefore distinguished between the presumption of accuracy under s. 258(1)(g) and the presumption of identity in s. 258(1)(c). Applying Rilling, he found that the certificate was still admissible under [page729] s. 258(1)(g). However, he declined to apply Rilling to what he called the "evidentiary short-cut" available to the Crown under s. 258(1)(c).

[27] Having concluded that the Crown could not avail itself of the presumption of identity in s. 258(1)(c), the summary conviction appeal judge concluded, at para. 14:

In my view, the trial decisions in these appeals were in error when the blood alcohol concentrations of both appellants at the time of vehicle operation were determined by the application of the s. 258(1)(c) presumption in the face of clear findings that no reasonable and probable grounds had been proved by the Crown. The appeals are allowed and new trials are ordered. [See Note 1 below]

Analysis

[28] I begin the analysis by restating the issue common to both appeals:

Absent a Charter application, where an accused has provided breath samples pursuant to a demand made under s. 254(3) of the Code in circumstances where the peace officer did not have reasonable and probable grounds for making the demand, is the Crown entitled to avail itself of the presumption of identity in s. 258(1)(c) of the Code?

[29] As defined, the issue presumes that in both cases under appeal, the officers who made the demands did not have reasonable and probable grounds for doing so under s. 254(3). As those findings were not challenged by the Crown in this court, I refrain from commenting on them, other than to state that I should not be taken as endorsing the trial judges' analysis or conclusion in either case.

[30] Turning to the issue at hand, I wish to emphasize that on these appeals, we are not concerned with the Charter or any remedies that might be available under it; rather, the issue is whether, in the absence of a Charter application, the Crown may rely on the presumption of identity where samples of breath have been provided pursuant to a demand under s. 254(3) in circumstances where the officer making the demand did not have reasonable and probable grounds for doing so. I leave for another time whether the presumption of identity might factor into the s. 24(2) analysis, if at all, where an accused has challenged the admissibility of the test results and the court [page730] has found a s. 8 Charter breach on the basis that the arresting officer did not have reasonable and probable grounds to make the demand. I also leave open the question whether an accused who seeks to prevent the Crown from relying on the presumption of identity could possibly seek relief under s. 24(1) of the Charter where a s. 8 breach has been established but the evidence of the test results has been admitted under s. 24(2).

[31] In sum, the Charter issues, if any, relevant to the application of the presumption of identity, are matters to be determined another day. As for the issue at hand, which solely involves non-Charter considerations, I believe that Rilling, which continues to bind this court, provides a complete answer in favour of the Crown.

[32] In Rilling, the accused was charged with driving "over 80". The case at trial was a "certificate" case; the Crown called no viva voce evidence except for the evidence given by the arresting officer. The Crown relied entirely upon the certificate to prove the results of the breathalyzer test.

[33] The trial judge found that the arresting officer who demanded breath samples from Rilling did not have reasonable and probable grounds for believing that Rilling had been driving while impaired. Nonetheless, over Rilling's objection, the trial judge admitted the certificate of analysis into evidence and convicted Rilling on the basis of the information contained in it. The conviction was sustained on appeal to the Appellate Division of the Supreme Court of Alberta in a decision reported at 1973 ALTASCAD 22, [1973] A.J. No. 104, 11 C.C.C. (2d) 285 (C.A.).

[34] On further appeal to the Supreme Court of Canada, a majority of the court upheld the conviction. Writing for the majority, Judson J. adopted [at p. 198 S.C.R.] the following quote from p. 295 C.C.C. of the Appellate Division decision:

It is my opinion that this Court should . . . hold that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 [now s. 254(5)] of the [Criminal Code], it does not render inadmissible certificate evidence in the case of a charge under s. 236 [now s. 253(1)(b)] of the Code. The motive which actuates a peace officer in making a demand under s. 235(1) [now s. 254(3)] is not a relevant consideration when the demand has been acceded to. (Emphasis added)

[35] It is apparent that in sustaining Rilling's "over 80" conviction, the majority of the court applied the presumption of identity as well as the presumption of accuracy. As noted, the case was a "certificate" case. There was no expert evidence relating Rilling's test results back to the time of the driving. Hence, [page731] absent the presumption of identity, there was no basis for convicting Rilling.

[36] Surely, this was not lost on the majority; nor could it have been. In Spence J.'s dissenting reasons, at p. 194 S.C.R., p. 91 C.C.C., he specifically referred to s. 237(1)(c) and 237(1)(f) (now s. 258(1)(c) and s. 258(1)(g)) and drew no distinction between them:

I am of the opinion that the requirement in both s. 237(1)(c) and s. 237(1)(f) [now ss. 258(1)(c) and 258(1)(g)] that the test should have been made pursuant to the demand under s. 235(1) [now s. 254(3)] was inserted by Parliament with the intention of limiting those cases where the analysis could be proved by a certificate of a qualified technician and then that such analysis would provide prima facie proof of the proportion of alcohol in the blood of the accused only to those cases where the peace officer had, on reasonable and probable grounds, believed that the accused was or had been driving while impaired. This was only a proper requirement when the test was one which the citizen was required to submit to on penalty of committing an offence if he refused.

[37] In Spence J.'s view, by virtue of the opening words of both provisions, Parliament intended to limit the availability of the presumptions in both s. 258(1)(c) and s. 258(1)(g) to those cases where the arresting officer had reasonable and probable grounds. In contrast, the majority in Rilling must be taken to have concluded that just as reasonable and probable grounds for making a demand are irrelevant for purposes of s. 258(1)(g) where an accused has acceded to the demand and provided samples, so too are those words irrelevant for purposes of s. 258(1)(c). The only other possibility, in the circumstances, is that the majority sustained an unlawful conviction, a proposition that I refuse to accept.

[38] In light of Rilling, I can see no reason why the opening words of s. 258(1)(g) should be treated as irrelevant where an accused has complied with a demand and provided samples but treated as highly relevant in identical circumstances where what is at issue is the presumption of identity in s. 258(1) (c). As a matter of statutory interpretation, absent express language to the contrary, the same words in two subsections of the same provision should be treated alike, especially where, as here, the provision is meant to provide a complete code for proceedings involving drinking and driving offences. Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation: R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at p. 1387 S.C.R.

[39] My conclusion that Rilling is dispositive of these appeals is reinforced by this court's recent decision in R. v. Gundy, 2008 ONCA 284, [2008] O.J. No. 1410, 231 C.C.C. (3d) 26 (C.A.). In Gundy, one of the [page732] issues to be decided was whether the Crown was required to prove, as part of its case on a charge of "over 80", that [at para. 26] "the [arresting officer] had reasonable and probable grounds to make the Intoxilizer demand". Writing for the court, Rosenberg J.A. observed, at para. 26, that the issue turned on "whether reasonable and probable grounds are a pre-requisite to the admission of the Intoxilizer results, either by certificate [through the presumption of accuracy in s. 258(1)(g)] or through viva voce evidence", or a pre-requisite to the Crown being able to rely on the presumption of identity in s. 258(1) (c).

[40] The appellant in Gundy raised the identical argument in relation to s. 258(1)(g) that the respondents Charette and Tran have raised in relation to s. 258(1)(c), namely, that the reference to a "demand" in s. 258(1)(g) must mean a valid demand, that is, a demand based on reasonable and probable grounds.

[41] Having identified the issue and the appellant's argument in relation to it, Rosenberg J.A. referred, at para. 28, to Rilling, noting that it "stands for the proposition that absence of reasonable and probable grounds does not affect the admissibility of the certificate". After quoting the passage from Judson J.'s majority decision reproduced, above at para. 34, Rosenberg J.A. made the following comments apposite to the issue at hand, at para. 29:

The argument relating to the s. 258(1)(c) presumption runs along similar lines since the opening words are virtually identical: "where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)". It would seem to me that Rilling is a complete answer to that argument as well: see R. v. Anderson, [2005] O.J. No. 1900 (C.A.). In fact, in his dissent in Rilling, Spence J. drew no distinction between the admissibility of the certificate or the operation of the presumption, writing that proof of reasonable and probable grounds was a condition precedent with respect to both.

[42] Later in his reasons, Rosenberg J.A. referred to the decision of the New Brunswick Court of Appeal in R. v. Searle, supra. In that case, the accused, who was facing a charge of "over 80", did not seek to exclude the breath test results, nor did he make a Charter argument. Rather, he argued that the Crown could not rely on the presumption of identity in s. 258(1)(c) because the officer who demanded breath samples from him did not have reasonable and probable grounds to make a demand under s. 254(3). Hence, the demand was unlawful and the presumption of identity was not triggered. The Court of Appeal agreed with that submission. Its brief analysis of the issue is found at para. 25 as follows: [page733]

Since the demand was not made in strict compliance with s. 254(3) of the Code, it is unlawful. The Crown cannot rely on the presumption found in s. 258(1)(c) unless the officer had reasonable and probable grounds to make the breathalyzer demand in the first place.

[43] In Gundy, at para. 40, Rosenberg J.A. observed that the "Searle issue does not arise in this case". Accordingly, he refrained from deciding it. However, in his concluding comments on Searle, he pointedly observed that "when the matter is before the court for decision, the effect of Rilling will have to be considered".

[44] As Gundy makes clear, Rilling remains good law and it will continue to bind this court unless and until it is overturned by the Supreme Court of Canada or Parliament intervenes and changes the law. Until then, I see no reason why the opening words of s. 258(1)(c) -- "where samples of breath of the accused have been taken pursuant to a demand made under subsection 254(3)" -- should be interpreted any differently than the identical words in the opening of s. 258(1)(g).

[45] I am further satisfied that as a matter of policy and sound criminal procedure, the Rilling principle should apply equally to s. 258(1)(c) as it does to s. 258(1)(g). When one considers the carnage and destruction caused by impaired drivers, I do not think we should be promoting "trial by ambush" in "over 80" trials. In Gundy, this court made it clear that the notice requirements for Charter applications should, as a rule, be adhered to and that non-Charter motions to exclude evidence should be raised before or when the evidence is proffered (see Gundy, at paras. 19-24 and 50).

[46] At present, for purposes of s. 258(1)(g), where an accused is charged with driving "over 80", the Crown need not concern itself with proving the existence of reasonable and probable grounds under s. 254(3) unless the accused brings a Charter application challenging the admissibility of the test results. While that will not change if the decision of the summary conviction appeal court judge stands, as a practical matter, it will be of no benefit to the Crown because in order to take advantage of the presumption of identity in s. 258(1) (c), the Crown will be obliged to establish reasonable and probable grounds in every "over 80" case, or risk having the charge dismissed. And because an attack on the presumption of identity does not technically involve an application to exclude evidence, it is at least arguable that an accused could wait until the end of the trial, after all of the evidence has been heard, before springing the trap and arguing that the presumption should not be available to the [page734] Crown because the arresting officer did not have reasonable and probable grounds for making a demand under s. 254(3).

[47] Faced with that prospect, as a precautionary measure, in every case of driving "over 80", the Crown would feel obliged to call all of the evidence available to it touching on the officer's grounds for making the breath demand. And in those cases where the Crown could not be certain of obtaining a favourable finding, it would need to have a toxicologist on hand who could relate the readings back to the time of driving. In the Crown's submission, these consequences would have a negative impact on a justice system that is already over- burdened, especially at the Ontario Court of Justice, where drinking and driving offences consume enormous amounts of time and resources.

[48] Under the regime proposed by the Crown, absent a Charter challenge to exclude the test results or prevent the Crown from relying on the presumption of identity, the Crown would not have to concern itself with the "reasonable and probable grounds" requirement in s. 254(3) to take advantage of the evidentiary shortcuts provided for in s. 258(1)(c) and (g) of the Code. Once an accused has acceded to a demand, the existence of reasonable and probable grounds under s. 254(3) should be immaterial.

[49] In my view, the Charter/non-Charter dichotomy represents a fair and equitable approach. It achieves a proper balance between the rights of the accused and the interests of society.

[50] Under such a regime, accused persons are better off than they were in the immediate aftermath of Rilling, i.e., before the advent of the Charter. In the period from 1975 to 1982, accused persons who acceded to a demand in circumstances where the arresting officer did not have reasonable and probable grounds were left without a remedy. But that changed with the arrival of the Charter. Now accused persons can challenge the admissibility of the test results under s. 8 and seek to exclude those results under s. 24(2).

[51] As for the interests of society, under the proposed regime, the Crown will be alerted to the s. 8 breach and can prepare for it. With the guesswork removed, the trial can then proceed in a more efficient, orderly and less costly fashion. As well, contrary to the view expressed by the trial judge in Tran, the Charter/non-Charter dichotomy involves more than "huge volumes of Charter materials that really are not necessary" since the finding of a s. 8 breach will not automatically result in the exclusion of evidence under s. 24(2) (see, for example, the comments of [page735] Weiler J.A. in R. v. Richfield, 2003 52164 (ON CA), [2003] O.J. No. 3230, 178 C.C.C. (3d) 23 (C.A.), at paras. 14-18 and R. v. Wilding (2007), 88 O.R. (3d) 680, [2007] O.J. No. 4776, 2007 ONCA 853).

Conclusion

[52] For these reasons, I am respectfully of the view that the learned summary conviction appeal judge erred in holding that in the absence of a Charter application, where an accused accedes to a demand under s. 254(3), the Crown must prove that the officer had reasonable and probable grounds for making the demand in order to rely on the presumption of identity in s. 258(1)(c) of the Code. Accordingly, I would grant leave to appeal in both instances, allow the appeals and restore the convictions registered against both respondents.

Appeal allowed.

Notes

Note 1: on the summary conviction appeal judge's analysis, I question, without deciding, whether it was appropriate to order new trials. I would have thought, in view of his analysis that there was no evidence of either Charette's or Tran's blood alcohol concentrations at the time of the alleged offences, acquittals should have been entered.