Her Majesty the Queen v. Dineley, 2009 ONCA 814

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

98 O.R. (3d) 81

Court of Appeal for Ontario,

MacPherson, Cronk and Epstein JJ.A.

November 18, 2009

Criminal law -- Driving "over 80" -- Evidence to the contrary -- Bill C-2 amendments to s. 258(1) of Criminal Code having retrospective effect -- Amendments not eliminating or neutering Carter defence but merely altering evidentiary content of that defence.

Statutes -- Interpretation -- Retrospective operation -- Bill C-2 amendments to s. 258(1) of Criminal Code having retrospective effect -- Amendments not eliminating or neutering Carter defence but merely altering evidentiary content of that defence.

The accused was charged with driving over 80. After the offence was committed and before the trial commenced, the "evidence to the contrary" provisions of s. 258(1) of the Criminal Code, R.S.C. 1985, c. C-46 were amended by Bill C-2. The trial judge found that the amendments do not apply retrospectively to offences committed before the coming into force date. The accused was acquitted. The summary conviction appeal court reached the same conclusion about the retrospective operation of the amendments. The Crown appealed.

Held, the appeal should be allowed.

The amendments to s. 258(1) apply retrospectively. They are essentially evidentiary in nature. The Carter defence has not been virtually eliminated, neutered or abolished. It has been changed, but it survives in a different form. Legislation which merely alters the evidentiary content of an existing defence, rather than removing or eliminating the defence, does not compel a prospective application.

APPEAL from the judgment of Sproat J., 2009 24636 (ON SC), [2009] O.J. No. 2007 (S.C.J.) dismissing the appeal from an acquittal on the charge of driving over 80.

Cases referred to Angus v. Sun Alliance Insurance Co., 1988 5 (SCC), [1988] 2 S.C.R. 256, [1988] S.C.J. No. 75, 52 D.L.R. (4th) 193, 87 N.R. 200, J.E. 88-1293, 30 O.A.C. 210, 34 C.C.L.I. 237, 47 C.C.L.T. 39, [1988] I.L.R. Â1-2370 at 9161, 9 M.V.R. (2d) 245, 12 A.C.W.S. (3d) 93; 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. Cvitkovic, [1998] O.J. No. 50, 49 C.R.R. (2d) 73, 31 M.V.R. (3d) 271, 37 W.C.B. (2d) 78 (C.J.); R. v. Rigitano, [1999] O.J. No. 997 (C.A.), consd Other cases referred to Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, 240 D.L.R. (4th) 81, 322 N.R. 205, [2005] 2 W.W.R. 605, 199 B.C.A.C. 45, 33 B.C.L.R. (4th) 195, 184 C.C.C. (3d) 449, 21 C.R. (6th) 82, 121 C.R.R. (2d) 1, 61 W.C.B. (2d) 217; R. v. Bickford, 1989 7238 (ON CA), [1989] O.J. No. 835, 34 O.A.C. 34, 51 C.C.C. (3d) 181, 48 C.R.R. 194 (C.A.); R. v. E. (P.L.), [2008] O.J. No. 5234, 79 M.V.R. (5th) 144 (S.C.J.); R. v. Mariano, [2008] O.J. No. 4431, 2008 ONCJ 538, 77 M.V.R. (5th) 234; R. v. McDonald, [2008] O.J. No. 4297, 2008 ONCJ 536, 79 W.C.B. (2d) 604; R. v. Ng, [2008] O.J. No. 4192, 2008 ONCJ 534; 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 [page82 ] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 258 [as am.], (1) [as am.], (c) [as am.], (d.01) [as am.], (d.1) [as am.] Tackling Violent Crime Act, S.C. 2008, c. 6 Authorities referred to Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths Canada Ltd., 2002)

Philip Perlmutter and James Palangio, for appellant. Paul Burstein and J. Thomas Wiley, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] The respondent, Samuel Dineley, was acquitted of impaired driving and driving over 80 on July 24, 2008. The trial judge ruled that the amendments to s. 258(1) of the Criminal Code, R.S.C. 1985, c. C-46 which changed the so-called "Carter defence" for a driving over 80 charge did not apply retrospectively to offences committed before the coming into force date of July 2, 2008. The summary conviction appeal judge reached the same conclusion about the retrospective operation of the amendments.

[2] The Crown appeals the latter decision. Its position is that the amendments to s. 258(1) of the Criminal Code apply retrospectively to offences committed before July 2, 2008, at trials commenced or continuing after that date. This issue is an important one: in Ontario there are approximately 3,000 cases in this category. Moreover, there have already been over 50 decisions, going both ways, in the Ontario provincial and superior courts, and scores of decisions, again going both ways, in the courts in other provinces in Canada.

B. Facts

(1) The events

[3] On July 21, 2007, Samuel Dineley went to a nightclub to drink with several friends. Early the following morning, he returned to his parents' car. Soon after he started driving, the car mounted a curb and struck a parked vehicle. The police arrived to [page83 ]investigate the accident. They conducted breath tests that produced blood alcohol concentrations of 99 and 97 (rounded to 90) mg/100 mL of blood. Dineley was charged with impaired driving and driving over 80.

(2) The statutory framework

[4] On July 2, 2008, s. 258 of the Criminal Code was amended by the Tackling Violent Crime Act, S.C. 2008, c. 6 ("Bill C- 2").

[5] The amended s. 258(1)(c) reads, in relevant parts:

258(1)(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), . . . . .

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.

[6] The newly enacted s. 258(1)(d.01) provides:

258(1)(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.

[7] The amended s. 258(1)(d.1) provides:

258(1)(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 [page84 ] (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.

[8] There are no transitional provisions in Bill C-2.

[9] The effects of these amendments have been well and succinctly described by Brewer J. in R. v. Mariano, [2008] O.J. No. 4431, 77 M.V.R. (5th) 234 (C.J.), at paras. 2-5:

At the time that this offence allegedly occurred, section 258 of the Criminal Code enabled the prosecution to establish certain facts by way of presumptions. In particular, once certain preconditions were met, section 258(1)(c) and (d.1) provided Crown counsel with a statutory shortcut by deeming that, where the lower result of the two breath samples taken from an accused exceeded the legal limit, her blood alcohol concentration at the time the offence alleged occurred was presumed to be at the same level. By this means the prosecutor avoided having to call expert evidence to relate the results of the accused's breath tests back to the time that she was driving or in care and control of a motor vehicle. This is known as the presumption of identity.

The presumption of identity was available to the Crown in the absence of "evidence to the contrary" namely evidence capable of raising a reasonable doubt about the accused's blood alcohol level at the time of the offence. In the past, evidence to the contrary typically consisted of testimony from the accused, and sometimes other witnesses, about her pattern of drinking prior to driving, along with evidence from a toxicologist indicating that, if the accused had consumed the amount she claimed, her blood alcohol level at the time of the offence would have been below the legal limit. . . .

Pursuant to the Tackling Violent Crime Act, S.C. 2008, c. 6 (Bill C-2), which was enacted on July 2, 2008, section 258(1)(c) now provides that the result of the accused's lowest breath test is conclusive proof of her blood alcohol concentration at the time of the offence, in the absence of evidence tending to show: -- the approved instrument malfunctioned or was improperly operated; -- the malfunction or error resulted in the "over 80" result; and -- the accused's blood alcohol concentration would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time she was driving or in care and control of a motor vehicle.

In addition, section 258(d.01) precludes testimony with respect to the accused's alcohol consumption or her rate of elimination or a calculation of the accused's blood alcohol concentration premised on those factors from being advanced as evidence tending to show a problem with either the breath testing equipment or the testing procedure.

Where no challenge is being made to the accuracy of the results of the accused's breath tests, the amended section 258(d.1) permits the introduction of evidence that gives rise to the possibility that something, apart from normal biological processes, happened between the time of the alleged [page85 ]offence and the time of the breath tests that could have affected the accused's blood alcohol concentration. As an example, an accused person can still rebut the presumption of identity by leading evidence of bolus drinking or post-offence drinking.

(3) The trial

[10] The trial commenced on June 19, 2008. The Crown case was completed that day. The defence case would have been completed if the defence had been permitted to file its toxicology report. However, the Crown indicated that it wanted to cross- examine the toxicologist so the trial was adjourned to July 15, 2008.

[11] When the trial resumed, the Crown pointed out that s. 258 of the Criminal Code had been amended as of July 2, 2008 and attempted to submit that the effect of the amendments was to render the proposed toxicology evidence irrelevant.

[12] The trial judge did not permit the Crown to advance this argument. In his oral reasons dated July 24, 2008, he explained his earlier ruling: "It would be contrary to the proper administration of justice as well as the principles of fundamental justice and fairness to permit the Crown to raise the issue at this stage of the proceedings." After hearing the evidence relating to the Carter defence, the trial judge acquitted the accused on both charges.

[13] The Crown did not appeal the acquittal for impaired driving. However, it did appeal the acquittal for driving over 80 on the basis that the trial judge erred by not allowing the Crown to argue the retrospectivity issue and, therefore, in effect holding that Bill C-2 did not apply retrospectively to offences committed before July 2, 2008, but involving trials commencing or continuing after that date.

[14] The summary conviction appeal judge concluded that it was not improper for the Crown to raise the retrospectivity issue when the trial resumed on July 15, 2008. [See Note 1 below]

[15] The summary conviction appeal judge held that Bill C-2 did not apply retrospectively. After a careful analysis, he expressed his conclusion in this fashion [at paras. 26-27]:

I would, therefore, characterize Bill C-2 as creating a hybrid presumption that falls between a rebuttable and a conclusive presumption. The presumption is clothed in the language of a rebuttable presumption. The presumption, however, takes on aspects of a conclusive presumption by providing that evidence which, as a matter of logic and reason, is evidence to the contrary is deemed insufficient. [page86 ]

The amendments in question impinge and, in fact, virtually eliminate a defence. To the extent that the amendments provide for a conclusive presumption they are substantive law and not exclusively procedural. In accordance with well established principles Parliament must, therefore, be taken to have intended that the amendments have prospective effect only. It followed that the summary conviction appeal judge dismissed the appeal from the acquittal entered by the trial judge.

[16] The Crown appeals the summary conviction appeal judge's decision.

C. Issue

[17] The sole issue on the appeal is whether the amendments to s. 258(1) of the Criminal Code operate retrospectively.

D. Analysis

[18] The framework within which the temporal operation of a statute must be considered was set out by Robins J.A. of this court in R. v. Bickford, 1989 7238 (ON CA), [1989] O.J. No. 835, 34 O.A.C. 34 (C.A.), at para. 11:

As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters. Speaking generally, no person can be said to have a vested right in procedure or a right in the manner of proof that may be used against him: Howard Smith Paper Mills Ltd. v. The Queen, 1957 11 (SCC), [1957] S.C.R. 403; Wildman v. The Queen (1984), 1984 82 (SCC), 14 C.C.C. (3d) 321 (S.C.C.) . . . His right is to be tried according to law; that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of his trial. See, also, Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, at paras. 56-57; Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths Canada Ltd., 2002), at pp. 583-84.

[19] The Crown contends that the summary conviction appeal judge erred in two respects: (1) by distinguishing, rather than following and applying, this court's decision in R. v. Rigitano, [1999] O.J. No. 997 (C.A.); and (2) by concluding that the Bill C-2 amendments virtually eliminate an existing defence and are therefore substantive law and not exclusively procedural. I will address these arguments in turn.

(1) R. v. Rigitano

[20] Rigitano dealt with the issue whether the former s. 258(1)(d.1) of the Criminal Code, the so-called [page87 ]"St. Pierre amendments" (because they were intended to overrule the Supreme Court of Canada's decision in R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23) were procedural and therefore operated retrospectively. This issue had been thoroughly canvassed by Fairgrieve J. of the Ontario Court of Justice in R. v. Cvitkovic, [1998] O.J. No. 50, 31 M.V.R. (3d) 271 (C.J.). Fairgrieve J.'s conclusion, at para. 23, was that "the enactment of s. 258(1)(d.1) simply added a new evidentiary provision defining a method of proof. As such, it should properly be characterized as procedural rather than substantive in nature."

[21] When the same issue came before this court in Rigitano, in a short endorsement, Doherty J.A. said, at para. 1: "We agree with the analysis in [Cvitkovic]. Section 258(1)(d.1) is an evidentiary provision and was therefore applied at the appellant's trial."

[22] The summary conviction appeal judge was aware of Rigitano [at para. 13]: "If the logic in Cvitkovic applies, that dictates the result." However, he declined to follow these cases because he thought that Cvitkovic was distinguishable from the case before him [at para. 20]:

In essence, Cvitkovic holds that a presumption that may be rebutted by evidence to the contrary operates retrospectively. The presumption created by Bill C-2 cannot be rebutted simply by logical and probative evidence to the contrary, but requires specified types of evidence. Cvitkovic is distinguishable on that basis.

[23] With respect, I do not accept this attempt to distinguish Cvitkovic and Rigitano. In my view, both the St. Pierre amendments and the new amendments are essentially evidentiary in nature. They differ in degree, but not in kind. As expressed by Pringle J. in R. v. Ng, [2008] O.J. No. 4192, 2008 ONCJ 534, at para. 21:

There is little doubt that these amendments go much farther than those challenged in Cvitkovic, and require even more evidence to the contrary than before. However, I agree with the Crown's submission that the amendments don't take away the Carter defence, they simply add to its requirements. The accused may still call evidence that his consumption was such that his breath readings should have been under the legal limit at the time of driving; but in addition to that, he will have to point to an instrument or operator mistake that would have resulted in the breath readings he says are erroneous. Whether the additions to the law fatally impede the defence ability to make full answer and defence or amount to an unjustifiable reverse onus provision will need to be considered by another court in relation to the constitutional arguments. However, at this stage, I don't believe that the extent of the additional requirements changes their essential evidentiary character as identified in Cv itkovic and confirmed in Rigitano. (Emphasis added) [page88 ]

(2) Elimination of a defence

[24] The summary conviction appeal judge stated [at para. 27]:

The amendments in question impinge and, in fact, virtually eliminate a defence. To the extent that the amendments provide for a conclusive presumption they are substantive law and not exclusively procedural. In accordance with well established principles Parliament must, therefore, be taken to have intended that the amendments have prospective effect only. (Emphasis added)

[25] In several other cases in which courts have held that Bill C-2 should apply only prospectively, judges have used similar language to describe the recent amendments to s. 258 of the Criminal Code. For example, in R. v. E. (P.L.), [2008] O.J. No. 5234, 79 M.V.R. (5th) 144 (S.C.J.), at para. 27, the court described the Carter defence as "effectively neutered". And in R. v. McDonald, [2008] O.J. No. 4297, 2008 ONCJ 536, at para. 12, the court said that "the defence has for all practical purposes been abolished because the requirements appear to be impossible for the defence to meet." (Emphasis in original)

[26] With respect, these descriptions strike me as both speculative and overstated. The Carter defence has not been virtually eliminated, neutered or abolished. It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate. As explained by Pringle J. in Ng, at para. 28:

[I]t's true that the amendments redirect the defence to a new area and require it to address the reliability of the approved instrument in order to secure an acquittal. However, the legislation doesn't direct the content of the evidence necessary to raise a reasonable doubt: the defence is free to achieve this through cross-examination of the operator, pointing to an error on the face of the test records, or reliance on a problem with, for example, the alcohol standard solution.

(3) Conclusion

[27] I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v. Sun Alliance Insurance Co., 1988 5 (SCC), [1988] 2 S.C.R. 256, [1988] S.C.J. No. 75 and R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73. In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common-law defence: see Angus, at para. 21, and Boucher, at para. 22. In my opinion, however, read in their entirety, neither case stands for the [page89 ]proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application.

E. Disposition

[28] I would grant leave to appeal, allow the appeal and order a new trial to proceed on the basis of s. 258(1) of the Criminal Code as amended and currently in force.

Appeal allowed.

Notes

Note 1: I observe that the respondent does not contest the summary conviction appeal judge's conclusion on this point.