COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamel, 2020 ONCA 785

DATE: 20201211

DOCKET: C68118

Watt, Trotter & Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Hamel

Respondent

James V. Palangio and Matthew Giovinazzo, for the appellant

Adam S. Little, for the respondent

Heard: June 11, 2020 by videoconference

On appeal from the order of Justice David E. Harris of the Superior Court of Justice, dated March 19, 2019, with reasons reported at 2019 ONSC 1752, allowing an appeal from the conviction entered on April 24, 2018, by Justice D.A. Harris of the Ontario Court of Justice with reasons reported at 2018 ONCJ 279.

Watt J.A.:

[1] A police officer directed a speeding motorist to pull his vehicle over to the shoulder of Highway 407. The motorist complied.

[2] At the roadside, the officer spoke to the motorist, Benjamin Hamel (the respondent).

[3] As the man spoke, the officer concluded that he had reasonable grounds to believe that the respondent's ability to operate his motor vehicle was impaired by alcohol. The officer arrested the respondent for impaired operation of a motor vehicle.

[4] At the police station, a qualified technician administered a breath test with an approved instrument. The readings produced were 200 and 180 mgs of alcohol in 100 mls of blood.

[5] The Crown elected to proceed by summary conviction. After a contested trial before a judge of the Ontario Court of Justice, the respondent was found guilty of impaired operation of a motor vehicle and of operating a motor vehicle with a prohibited blood alcohol concentration. The trial judge convicted the respondent of impaired operation and entered a conditional stay on the other count.

[6] A judge of the Summary Conviction Appeal Court (the appeal judge) allowed the respondent's appeal on both counts. On the charge of operating a motor vehicle with a prohibited blood alcohol concentration, the appeal judge set aside the conditional stay, vacated the finding of guilt, and entered an acquittal. On the count of impaired operation, he quashed the conviction and ordered a new trial.

[7] Despite the repeal of the statutory provisions in issue in this case, a panel of this court granted the Attorney General leave to appeal from the decision of the appeal judge.

[8] These reasons explain why I would dismiss the appeal, and, save in one respect, affirm the order of the appeal judge directing a new trial.

The Background Facts

[9] A brief reference to the circumstances of the alleged offences and the procedural history of the prosecution will afford an adequate foundation for a discussion of the grounds of appeal advanced.

The Traffic Stop

[10] In the mid-afternoon of a day in March, PC Kyle Morris of the Halton Regional Police Service was on traffic enforcement duty. He was in uniform and driving a fully-marked police car in the middle westbound lane of Highway 407. In his rear-view mirror, he noticed a vehicle travelling, and ultimately passing him, at an excessive rate of speed. The officer estimated the vehicle's speed at 150 km/h. The posted speed limit on Highway 407 is 100 km/h.

[11] PC Morris activated the emergency equipment on his car and moved into the passing lane. The speeding vehicle continued its pace for a few seconds. Its driver, the respondent, then moved into the middle lane and finally the curb lane before he pulled over to the shoulder of the highway. Once on the shoulder, the respondent continued westbound for another 100 to 150 yards before he came to a stop. PC Morris considered the distance the respondent drove on the shoulder of the highway unusual.

The Roadside Discussion

[12] PC Morris explained to the respondent that he had stopped him for speeding. As they spoke, the officer noticed that the respondent's eyes were red and glossy, he mumbled when he spoke, and his speech was slurred. PC Morris detected a slight odour of alcohol on the respondent's breath. The respondent stared at the officer and gave inconsistent accounts of the purpose of his travel.

[13] PC Morris asked the respondent for his ownership and insurance, a request he repeated twice. The respondent’s movements to retrieve the documents from the glovebox were slow and deliberate. P.C. Morris also noticed a half-empty bottle of vodka on the passenger seat. The officer concluded from all the circumstances that he had reasonable grounds to believe that the respondent's ability to operate his motor vehicle was impaired by the consumption of alcohol.

[14] The officer had some difficulty placing the respondent in the backseat of his police car for transport to the police station. The respondent wanted to talk to the officer. PC Morris read the respondent his right to counsel and confirmed the respondent's understanding and his wish to speak to a lawyer.

[15] PC Morris did not make a formal demand of the respondent that he provide a sample of his breath into an alcohol screening device there at the roadside, or into an approved instrument at the police station.

The Conversation en route to the Station

[16] On the way to the police station, the respondent, who repeatedly misspoke the officer's name, persistently asked “What happens now?". The officer explained that at the station the respondent would have an opportunity to provide a breath sample and speak with a lawyer.

The Breath Tests

[17] At the police station, the respondent spoke to duty counsel on the telephone. PC Morris completed the sheet required to explain his grounds to the qualified technician. The technician later provided her certificate of analysis to PC Morris who served a copy of the certificate and two other documents on the respondent.

The Trial Proceedings

[18] At trial, PC Morris was the only witness called by the Crown (not counsel on appeal). When the Crown tendered the certificate of the qualified technician as an exhibit, the following exchange occurred:

[Crown counsel]: Next exhibit please, Your Honour.

The Court: Defence counsel?

Defence counsel: Subject to argument, sir.

The Court: Subject to the Charter or…

The Court: …other argument?

Defence counsel: The Charter, yes.

The Court: Okay, I will make that Exhibit 1 subject to the Charter application.

[19] After defence counsel concluded his cross-examination of PC Morris, the Crown closed his case. Defence counsel elected not to call any evidence. He then noted that PC Morris had not testified that he made or read a demand that the respondent provide a sample of his breath for analysis. The trial Crown acknowledged that he had not elicited evidence of a demand from PC Morris. After considering whether he should apply to re-open his case to adduce evidence of a demand, the trial Crown abandoned this prospect.

[20] By mutual agreement, the parties conducted the hearing as a blended voir dire and trial. The respondent had given notice of his intention to advance arguments that infringements of ss. 8 and 10 of the Charter of Rights and Freedoms had occurred during the investigation and warranted exclusion of the certificate of the qualified technician as evidence.

[21] In closing submissions, defence counsel contended that in the absence of evidence of a demand under former s. 254(3), the certificate of the qualified technician was inadmissible as evidence. The demand had to be proven by evidence extraneous to the certificate itself. There was no such evidence. Defence counsel did not seek leave to raise the absence of a demand as a further basis for his claim of a breach of s. 8 of the Charter.

[22] The trial judge raised the prospect that the respondent's objection had come too late in the trial as the certificate had already been admitted as evidence. The parties returned the next day to complete their submissions. The trial judge reserved his decision.

The Decision of the Trial Judge

[23] The trial judge declined to exclude the certificate of analysis on the basis that the Crown had failed to establish a proper demand, a precondition to admissibility. In the trial judge's view, the argument failed because defence counsel's objection came too late, only after the certificate had been received in evidence and the Crown had closed its case.

[24] The trial judge found that PC Morris had breached the respondent’s right under s. 10(a) of the Charter when the officer failed to tell the respondent that he was no longer being detained for speeding, but for impaired operation of a motor vehicle. As a result of this infringement, the trial judge excluded the respondent's utterances to PC Morris at the roadside.

[25] The trial judge considered and rejected the respondent’s argument that PC Morris infringed s. 8 of the Charter because he lacked reasonable grounds to demand that the respondent provide a breath sample.

[26] In his application of s. 24(2) of the Charter to the evidence tendered by the Crown, the trial judge excluded the respondent's utterances at the roadside in his consideration of whether PC Morris had reasonable grounds to demand a sample of the respondent’s breath. He found that even without the utterances, PC Morris had reasonable grounds to make the demand. Thus, there was no breach of s. 8 of the Charter. The trial judge admitted the breath test results as evidence and found the respondent guilty of operating a motor vehicle with a prohibited concentration of alcohol in his blood.

[27] The trial judge then considered the sufficiency of the evidence to prove the charge of impaired operation. He concluded, on the basis of all the evidence, that the respondent was guilty of impaired operation. He added that the results of the breath tests confirmed the presence of alcohol in the respondent's body when he was driving and for some time thereafter.

[28] The trial judge entered a conviction on the count of impaired operation and a conditional stay on the count of operating a motor vehicle with a prohibited blood alcohol concentration.

The Decision of the Appeal Judge

[29] The respondent appealed to the Summary Conviction Appeal Court. Among the grounds of appeal advanced were assertions that the trial judge erred:

i. in holding that lack of timely objection foreclosed the right of the defence to challenge the admissibility of the results of the breath test;

ii. in giving effect to the presumption of identity in former s. 258(1)(c), despite having found that no proper demand for a breath sample had been made by PC Morris; and

iii. in failing to exclude the breath test results for infringements of ss. 8 and 10(a) of the Charter.

[30] In written reasons, the appeal judge concluded that:

i. absent evidence of a proper demand, the presumptions of accuracy and identity in former ss. 258(1)(c) and (g) were not available to the Crown to prove the respondent's blood alcohol concentration at the time of the sample or at the time of driving;

ii. in the absence of the presumptions, there was no admissible evidence of the respondent's blood alcohol concentration, thus no evidence to support a conviction for operating a motor vehicle with a prohibited blood alcohol concentration;

iii. the trial judge erred in holding that an objection was necessary since the issue was not one of admissibility of the certificate, but rather whether the contents of the certificate could be used as evidence of their truth absent the availability of the presumptions; and

iv. the decision in R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967 is irrelevant to the issues raised on appeal.

[31] The appeal judge allowed the appeal. On the count of operation of a motor vehicle with a prohibited blood alcohol concentration, he set aside the conditional stay, vacated the finding of guilt, and entered an acquittal. Since the trial judge had erred in law “in factoring in his erroneous ‘over 80 conclusion’ to fortify his findings of impairment", the appeal judge set aside the conviction of impaired operation and ordered a new trial on that count.

The Grounds of Appeal

[32] With leave granted by a panel of this court, the Crown appeals from the decision of the appeal judge on two grounds:

i. the appeal judge erred in law in holding that the Crown was required to prove a breath demand under former s. 254(3) to invoke the statutory presumptions in former ss. 258(1)(c) and (g); and

ii. the appeal judge erred in law in holding that the trial judge erred in admitting the certificate under former s. 258(1)(g) for failure of timely objection to its admissibility.

Ground #1: The Breath Demand Issue

[33] The first ground of appeal focuses on the effect of an absence of evidence of a proper breath demand on the availability of the evidentiary shortcuts in former ss. 258(1)(c) and (g) to establish the essential elements on the alcohol driving offences with which the respondent was charged.

The Evidence at Trial

[34] PC Morris was the only witness at trial. He was not asked whether he made a demand of the respondent that he provide samples of his breath to determine the proportion of alcohol in his blood. In answer to a question the respondent asked on the way to the police station – “What happens now?"- PC Morris explained that the respondent would have the opportunity to provide a sample of breath and to talk to a lawyer once they arrived at the station.

[35] PC Morris also testified that he filled out an Intoxilyzer sheet and advised the qualified technician of the basis for his reasonably-grounded belief that the respondent had operated a motor vehicle while his ability to do so was impaired by the consumption of alcohol.

The Statutory Provisions

[36] Former s. 254(3) authorized a peace officer who had reasonable grounds to believe that a person was committing, or, within the previous three hours, had committed an offence under s. 253 as a result of the consumption of alcohol, to demand that the person provide samples of breath suitable for analysis to determine the concentration of alcohol in the person's blood. The section did not provide a specific form for the demand or the terms in which it was to be expressed.

[37] Former s. 258(1) also applied in proceedings for the offences with which the respondent was charged. More specifically, ss. (c) and (g) permitted evidentiary shortcuts to facilitate proof of essential elements of the offences. The shortcuts helped the Crown prove the blood alcohol concentration of an accused from the results of an analysis of the accused's breath performed by a qualified technician using an approved instrument.

[38] In their material parts, ss. 258(1)(c) and (g) were in these terms:

258(1) In any proceedings…in respect of an offence committed under section 253…

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

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,

(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

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;

[39] The final provision of relevance is s. 25(1) of the Interpretation Act, R.S.C. 1985, c. I-21:

25(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.

The Arguments on Appeal

[40] The Crown appellant contends that the appeal judge made three errors which, singly or in combination, warrant reversal of his conclusion and restoration of the verdicts rendered at trial. The Crown says that the appeal judge wrongly concluded that:

i. the presumptions of accuracy and identity were only available to the Crown where a “proper breath demand" was established on the evidence;

ii. there was no evidence of a “proper breath demand"; and

iii. resort to the Charter to exclude the breath test results was not necessary and the failure to make timely objection to their admissibility was not fatal.

[41] The Crown appellant submits that in Alex, the Supreme Court of Canada rejected the “plain meaning" approach to the common opening words in former ss. 258(1)(c) and (g): “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), …". The provisions of ss. 258(1)(c) and (g) are evidentiary shortcuts. They are intended to streamline proceedings in alcohol-driving cases by dispensing with the need to call two extra witnesses – the qualified technician and a forensic toxicologist – in every prosecution for offences involving excess blood alcohol concentration. The only preconditions to be met to invoke these presumptions are those concerned with the reliability of the test results and relating those results to the blood-alcohol concentration of the accused at the time of the offence. A valid breath demand has nothing to do with these scientific criteria and reliability guarantors.

[42] According to the Crown, the structure of each of former ss. 258(1)(c) and (g) consists of an opening part followed by specific enumerated criteria that must be met for the provision, the evidentiary shortcut, to apply. If a demand were a condition precedent to the application of the provision, the demand would be included in the enumerated criteria. But it is not. The opening words in the subsection simply designate the nature of the sample in issue – a breath sample. This construction is confirmed by the current legislation which deletes any reference to “pursuant to a demand".

[43] In addition, the Crown appellant continues, this Court has never held that a valid former s. 254(3) demand is a condition precedent to reliance on the evidentiary shortcuts of former ss. 258(1)(c) and (g). On occasion, this Court has assumed that at least some evidence of a demand is required. But these authorities did not consider the effect of the decision in R. v. Rilling, 1975 CanLII 159 (SCC), [1976] 2 S.C.R. 183, which held that the certificate was admissible even if no valid s. 254(3) demand had been made.

[44] In the end, the Crown appellant says, the decision in Alex is dispositive. There is no need to establish a lawful demand to take advantage of the evidentiary shortcuts provided by the former ss. 258(1)(c) and (g). Scrutiny of the evidence collection process, which involves the seizure of breath, is governed by ss. 8 and 24(2) of the Charter. Absent such a challenge, compliance with a request for a sample is deemed compliance with the demand and engages the evidentiary shortcuts. When that challenge is made and fails, as it did here, the evidentiary shortcuts are available to the Crown to prove its case.

[45] The respondent sees it differently. The appeal judge got it right. Evidence of a demand to provide a breath sample for analysis is a condition precedent to reliance on the evidentiary shortcuts in former ss. 258(1)(c) and (g). Neither Rilling nor Alex says otherwise. The issue there was whether the Crown had to establish the lawfulness of the demand before it could invoke the presumptions of then ss. 258(1)(c) and (g) to assist in its proof. But that is not this case. Neither decision did away with the requirement of a demand. Absent evidence of a demand, the assistance of ss. 258(1)(c) and (g) is not available to the Crown. That is this case.

[46] The respondent reminds us of the extraordinary nature of the shortcuts enacted by former ss. 258(1)(c) and (g). To engage those shortcuts, the Crown must establish the conditions precedent to their operation. This includes a demand for a breath sample. The sample must be provided “pursuant to" a demand under former s. 254(3). The terms “pursuant to" are restrictive. They mean “in compliance with" and “authorized by", language that reflects a Parliamentary intention to restrict the circumstances in which the presumptions will be of service to the Crown in its pursuit of proof.

[47] The respondent points out that failure to establish the conditions precedent to engage the evidentiary shortcuts of former ss. 258(1)(c) and (g) does not mean that the breath samples and analysis of them are inadmissible as evidence. Former s. 258(1) does not deal with samples. Their admissibility is governed by the common law. A qualified technician can establish that a breath test was administered and give evidence of the results of that analysis. And a toxicologist can “read back" the results of the breath tests to the time of the offence.

[48] In this province, the respondent submits, for over four decades the law has been that proof of a demand has been considered a precondition to reliance on the evidentiary shortcuts in former ss. 258(1)(c) and (g). Nothing said in Alex, where the concern was about the need to prove the lawfulness of the demand, or in Rilling before it, eliminates the need for proof of a demand. There was none here. And the eleventh-hour reliance on the respondent's consent to submit to the breath test was not advanced at trial and is bankrupt of evidentiary support.

[49] In any event, the respondent concludes, the appeal is from the order of the appeal judge, not his reasons. Even if he erred in his analysis, the respondent says, the result would have been no different. Absent the availability of the presumption of identity, there was no evidence of alcohol in the respondent's blood at the time of the alleged offences, thus neither was proven beyond a reasonable doubt.

The Governing Principles

Breath Demands under Section 254(3)

[50] The principles which govern our decision on this ground of appeal are those that interpret the former s. 254(3) and ss. 258(1)(c) and (g). Their application controls the response to the core question of whether the Crown must prove a demand for a breath sample as a condition precedent to the application of the evidentiary shortcuts in former ss. 258(1)(c) and (g).

[51] Former s. 254(3) authorized a peace officer to make a demand that a person provide samples of breath for analysis to determine the concentration, if any, of alcohol in the person's blood. In order to make the demand, the officer must have reasonable grounds to believe that the person was then committing or, within the previous three hours, had committed a specified offence as a result of the consumption of alcohol.

[52] The former provision put in place the initial step in an investigative procedure that, carried to its conclusion, would result in the seizure of a bodily substance –breath – from a person. The subsection did not prescribe a form of demand or the words in which the demand was to be made. Nor did the provision make any reference to the evidence obtained in the breath analysis, much less to its admissibility in a subsequent prosecution.

[53] In any case in which proof of a demand under former s. 254(3) is a fact in issue, the making of the demand may be proven by direct evidence, by circumstantial evidence, or by a combination thereof: R. v. Pickles (1973), 1973 CanLII 1357 (ON CA), 11 C.C.C. (2d) 210 (Ont. C.A.), at p. 216; R. v. Walsh (1980), 1980 CanLII 2885 (ON CA), 53 C.C.C. (2d) 568 (Ont. C.A.), at pp. 572-73. For example, a demand under s. 254(3) may be inferred from the cumulative effect of evidence that:

i. the arresting officer demanded that the accused provide a sample of breath into a breathalyzer;

ii. the arresting officer turned the accused over to a person qualified to administer breath tests; and

iii. the accused was returned to the arresting officer, together with a certificate of the breath test results.

See, Pickles, at p. 216; R. v. Hall (1981), 1981 ABCA 13, 57 C.C.C. (2d) 305 (Alta. C.A.), at pp. 307-9.

[54] Although not the subject of unqualified precedent, it would seem that proof of a demand under former s. 254(3) must be made by evidence extrinsic to the contents of the breath certificate tendered or admitted in evidence: Pickles, at pp. 215-16; Walsh, at pp. 571-72; R. v. Richard(1979), 1979 CanLII 3282 (NB CA), 26 NBR (2d) 16 (CA), at paras. 7-11.

[55] A final point concerns the role of reasonable grounds in the propriety of a demand under former s. 254(3). The reasonable grounds requirement is not an ingredient of a demand under the subsection such that the absence of the grounds results in the demand not being a demand under s. 254(3). Rather, the absence of the grounds is a substantive provision that may form a defence to charges of refusal to provide or failure to comply with a breath sample demand: R. v. Showell (1971), 1971 CanLII 512 (ON SC), 4 C.C.C. (2d) 252 (Ont. H.C.) at pp. 255-56.

The Evidentiary Shortcuts

[56] For many years, the Criminal Code of Canada has contained provisions governing the admissibility of certificates of qualified persons to assist in proof of essential elements of various alcohol-driving offences. In particular, these provisions assist in proof of the blood-alcohol concentration of a person operating or in care or control of a motor vehicle. Among these provisions are former ss. 258(1)(c) and (g), the operation of which are in issue here.

[57] Each of the individual paragraphs within former s. 258(1) apply to proceedings under listed sections of the Criminal Code. The individual paragraphs with which we are concerned have in common these opening words:

Where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)…

There follows in each of former ss. 258(1)(c) and (g) evidentiary shortcuts of service to the Crown in proving the essential elements of a designated offence.

[58] Former s. 258(1)(g) is a statutory exception to the hearsay rule. Once engaged, the provision admits the certificate of a qualified technician as proof of the truth of its contents, which include the results of the breath tests administered to the accused, without the need for viva voce evidence: Alex, at para. 17. The Crown need not prove the signature or official character of the author of the certificate.

[59] Former s. 258(1)(c) creates two statutory inferences that may be presumptively drawn from the certificate. First, a presumption of accuracy, that is to say, that the breath readings recorded in the certificate are accurate measures of the accused's blood alcohol concentration at the time they were taken. This relieves the Crown of having to call as a witness the qualified technician who administered the tests to prove that fact and their accuracy: Alex, at para. 18.

[60] Second, a presumption of identity. This presumptive inference relates the breath test results to the blood alcohol concentration of the accused at the time of the alleged offence. Thus, the Crown need not call a toxicologist to identify or “read back” the test readings to the time of the offence: Alex, at para. 19.

[61] Taken together, former ss. 258(1)(c) and (g) streamline trial proceedings for alcohol driving offences. They do so by permitting an accused's blood alcohol concentration at the time of the alleged offence to be presumptively proven by filing a certificate of analysis. But these provisions do not affect whether the accused's breath readings are admissible or not. They affect only the manner of admission which has no connection with the lawfulness of the breath demand: Alex, at para. 20.

[62] To take advantage of the evidentiary shortcuts in former ss. 258(1)(c) and (g), the Crown need not prove that the s. 254(3) demand was lawful, for example, that it was based on reasonable grounds: Alex, at paras. 5, 11. A contrary conclusion would require two additional witnesses to give evidence about issues unrelated to the lawfulness of the demand, thus frustrating Parliament’s intention to simplify alcohol driving proceedings: Alex, at para. 12.

[63] In Alex, the appellant argued that a lawful demand under s. 254(3) was required before the evidentiary shortcuts of ss. 258(1)(c) and (g) could apply. The argument included three submissions:

i. that the plain meaning of the opening words of each paragraph require proof of a lawful s. 254(3) demand;

ii. Parliament intended the provisions to include a lawful demand pre-condition to provide another protection for the accused in the face of police powers of compulsion; and

iii. the interpretation is necessary to achieve harmony with the refusal to comply offence.

See, Alex, at para. 22.

[64] The Alex court rejected these arguments.

[65] The court concluded that, although the opening words of each paragraph, read in isolation, supported the argument of a lawful demand pre-condition, other considerations cast doubt on this interpretation. Parliament could have said that the sample had to be taken “pursuant to a lawful demand", but did not do so. And the structure of the sections, opening part followed by a specific list of preconditions all relating to the reliability of the shortcuts, does not mesh with this theme. And the phrase “pursuant to …" simply identifies the bodily sample to which the shortcuts apply – a breath sample: Alex, at paras. 25-30. In addition, the plain meaning of the provision on its own is not dispositive. The analysis requires consideration of the context, purpose, and relevant legal norms: Alex, at paras. 31, 33.

[66] In addition, ss. 8 and 24(2) of the Charter provide effective recourse for challenging the lawfulness of the breath demand and a meaningful remedy for infringements – exclusion of the breath results as evidence: Alex, at para. 42; R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721 at para. 48.

The Principles Applied

[67] I would not give effect to this ground of appeal.

[68] As with the assessment of any claim of legal error, the underlying circumstances in which the error is said to have occurred are critical.

[69] The trial judge found that the Crown adduced no evidence that PC Morris had made a demand of the respondent that he provide a sample of his breath for analysis to determine the blood alcohol concentration. There was no direct evidence from PC Morris. And the circumstantial evidence, considered as a whole, did not establish a demand.

[70] However, the trial judge went on to say that he did not have to decide the issue, presumably of the effect of the absence of a demand on the admissibility of the certificate of the qualified technician, because defence counsel had failed to make a timely objection to the admissibility of that evidence. The claims of Charter infringement by the respondent did not warrant exclusion of the certificate. And the certificate established not only that the respondent had alcohol in his blood at the time of the breath test, but also a specific concentration at the time he operated his motor vehicle. This concentration exceeded 80 mg of alcohol in 100 ml of blood, thus establishing guilt of operating a motor vehicle with a prohibited blood alcohol concentration. And it also confirmed other evidence to establish guilt of impaired operation.

[71] The appeal judge held that the absence of evidence of a breath demand meant that the Crown could not rely on the presumptive inferences of ss. 258(1)(c) and (g) to assist in its proof of the essential elements of the offence of operating a motor vehicle with a prohibited blood alcohol concentration. The certificate was admissible because it was “a document within the knowledge of the arresting officer". But proof of a demand under s. 254(3) was a condition precedent to access the evidentiary shortcuts of ss. 258(1)(c) and (g). Where there was no such proof, the presumptive inferences were not engaged, and the trial judge erred in law in relying on them and finding the offence of operating a motor vehicle with a prohibited blood alcohol concentration proven beyond a reasonable doubt.

[72] In my respectful view, the appeal judge did not err in concluding that the presumptive inferences in former ss. 258(1)(c) and (g) were not available to the Crown in the absence of evidence of a demand for a breath sample under former s. 254(3). The introductory language common to both former provisions, that is to say,

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

designates the evidence to which the provision applies: Alex, at para. 30. In short form, breath samples provided on demand. Not any sample of breath. But one provided as a result of a specific demand for it.

[73] We know from Alex that former ss. 258(1)(c) and (g) provide evidentiary shortcuts the purpose of which is to streamline the trials of offences occupying significant portions of provincial court dockets across the country. The provisions accomplish this by permitting certificate evidence to establish essential elements of an offence, rather than requiring additional witnesses to give evidence of what is contained in the certificates: Alex, at paras. 34, 36. The reasons in Alex also teach that the Crown is not required to establish the lawfulness of the demand in order to engage the presumptive inferences of the former subsections: Alex, at para. 11. An accused who wishes to challenge the lawfulness of the seizure of the breath sample, for example because of the absence of reasonable grounds for the demand, may do so by invoking s. 8 of the Charter and seeking exclusion of the evidence under s. 24(2): Alex, at paras. 42-43. The absence of reasonable grounds for the demand may provide an excuse to a charge of failure to comply with the demand, but it does not render the certificate inadmissible: Rilling, at p. 198; Charette, at para. 34.

[74] The issue in Alex was whether the Crown had to prove the lawfulness of the breath demand as a condition precedent to reliance on the evidentiary shortcuts of former ss. 258(1)(c) and (g). The issue was not, as it is here, whether the Crown was required to establish that a demand had been made for a breath sample. Had the Alex court considered that the Crown was not even required to establish that a demand had been made for a breath sample, I would have expected the court to have said so. Yet no such statement appears in the reasons.

[75] To require the Crown to establish that a demand for a breath sample was made is not inconsistent with the decisions in Alex and Rilling. Nor is it inconsistent with the purpose of the evidentiary shortcuts in former ss. 258(1)(c) and (g) as the court in Alex explained them. Such a requirement does not demand additional witnesses, such as a qualified technician and a toxicologist. As this case exemplifies, all that is required is a question or two to elicit the evidence from the arresting officer.

[76] Further, to permit an accused to challenge the lawfulness of the demand, as for example for want of reasonable grounds under s. 8 of the Charter, carries with it, at least implicitly, the requirement that there be a demand. Likewise, the designation of the subject matter of the evidence – “samples of the breath…taken pursuant to a demand …".

[77] I would reject this ground of appeal.

Ground #2: The Timely Objection Issue

[78] The second ground of appeal takes issue with the appeal judge's conclusion that the trial judge erred in rejecting, as untimely, trial counsel's submission that the certificate disclosing the respondent’s breath readings should be excluded for want of proof of a demand.

[79] A brief reference to the origins of the issue at trial and the decisions of the trial and appeal judges about it provides the frame essential for its determination.

The Trial Proceedings

[80] After PC Morris gave evidence of the steps he took at the police station before he turned the respondent over to the qualified technician and received the certificate of analysis, Crown counsel tendered the certificate as an exhibit. The trial judge asked defence counsel who responded, “subject to argument". The trial judge asked, “subject to the Charter or … other argument?" Defence counsel answered, “The Charter, yes". The trial judge admitted the certificate as evidence.

[81] The hearing proceeded, as the parties had agreed, as a blended voir dire and trial. The Crown closed its case. The defence elected to call no evidence. The trial judge inquired about the length of time required for closing submissions.

[82] Defence counsel then raised the absence of evidence of a demand. The trial Crown acknowledged that he had adduced no evidence of a demand. He considered, but did not seek, leave to reopen his case. Defence counsel submitted that without evidence of a demand, the certificate of the qualified technician was not admissible, thus there was no evidence of the respondent's blood alcohol concentration at the time the breath samples were taken or when he was operating his motor vehicle.

The Decision of the Trial Judge

[83] The trial judge rejected the submission that the certificate was inadmissible for want of proof of a demand. He grounded his rejection on the failure of trial counsel to object to the admissibility of the certificate in a timely way, invoking this court's decision in R. v. Gundy, 2008 ONCA 284, 231 C.C.C. (3d) 26 in support of his conclusion. He later rejected claims of Charter infringement to exclude the certificate and breath test results, admitted the certificate, and relied on the presumptive inferences of former ss. 258(1)(c) and (g) to conclude that the respondent's guilt had been proven on both counts.

The Decision of the Appeal Judge

[84] The appeal judge disagreed. He explained:

It was not, with respect, a question of admissibility of the certificate at all. As is the case generally with documentary evidence, the certificate was admissible if a proper foundation was laid for it. In most cases, the arresting officer will receive the certificate from the breathalyzer operator and then will serve it on the accused. It is admissible as a document within the knowledge of the arresting officer.

On this basis, the certificate will almost inevitably be admissible, subject of course to Charter remedies. The critical issue is whether the contents of the certificate can be used for their truth. Without the assistance of the statutory presumption of accuracy, the certificate would have no weight as its contents are hearsay statements of the breathalyzer officer. [Emphasis in original.]

The Arguments on Appeal

[85] The Crown says that the appeal judge erred in concluding that the trial judge was wrong in characterizing the dispute as one involving the admissibility of the certificate. This was an admissibility issue which was not raised in a timely way. As proceedings began, the Crown continues, the trial judge made it clear that objections to the admissibility of evidence were to be made when or immediately after the evidence was adduced, not 10 minutes later. Defence counsel did not object when the certificate was tendered and admitted as evidence. The failure to do so was prejudicial to the Crown. Had the objection been made when the certificate was tendered and PC Morris was still in the witness box, the evidentiary deficit would have been cured, and quickly so. The trial judge was right to dismiss it.

[86] The respondent rejects any suggestion of error in the appeal judge’s analysis or conclusion on the issue. He says that the appeal judge properly distinguished between the admissibility of the certificate and the failure to establish the preconditions to the availability of the evidentiary shortcuts contained in former ss. 258(1)(c) and (g). In this case, the respondent contends, the Crown failed to establish the condition precedent necessary to substantive use of the certificate. Consequently, the Crown failed to establish an essential element of the offences charged – the respondent's blood alcohol concentration at the time he was operating his motor vehicle. This was not an argument about the admissibility of the certificate, which was admissible for what it said on face, albeit not for the proof of the truth of its contents. This was an argument about the adequacy of the Crown's proof, thus properly the subject of closing submissions.

[87] The argument here, the respondent continues, was and is that the Crown failed to prove an essential element of the prohibited concentration offence. This element, the actus reus of the offence, was that at the time of operating his motor vehicle the respondent had a prohibited blood alcohol concentration. This could be proven in either of two ways. First, by calling the qualified technician to establish the blood alcohol concentration at the time of testing and a toxicologist to relate it back to the time of operation. Or second, by establishing the conditions precedent to the former ss. 258(1)(c) and (g), which permitted reliance on the certificate as proof of the truth of its contents.

[88] The respondent characterizes the appellant's position as unworkable. It would require an accused to raise the deficiency in proof of an essential element of the Crown's case prior to the conclusion of the Crown's case. These arguments must await the conclusion of the evidence, all the evidence. These arguments are not governed by the precedents on which the Crown relies.

The Governing Principles

[89] Evidence is receivable in a criminal trial if it is relevant, material and admissible. Evidence may also be conditionally admissible. This is because the presentation of all the evidence takes time. Some of the evidence, of necessity, must await the introduction of other evidence. Sometimes, an item of evidence depends for its admissibility on another item of evidence not yet tendered. Thus, we admit the evidence conditionally and confirm it when the other evidence is received: John Henry Wigmore, Wigmore on Evidence, revised by Peter Tillers (Toronto: Little, Brown and Company, 1983), at § 14, p. 702.

[90] As a general rule, the time for determining the admissibility of evidence is when it is offered to the court. Likewise, this is the time for objections and arguments about admissibility: Gundy, at paras. 20-21; R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), at pp. 294-95. However, the judge does have a discretion to allow counsel to challenge evidence already received. It is a discretion to be exercised where the interests of justice warrant: Kutynec, at pp. 296-97; Gundy, at para. 22. Rules of court enacted under ss. 482 and 482.1 of the Criminal Code may also contain notice requirements for applications to exclude evidence: Gundy, at para. 24.

The Principles Applied

[91] I would reject this ground of appeal. As I will explain, I agree with the conclusion of the appeal judge on this issue.

[92] PC Morris testified that he received the certificate from the qualified technician after he had turned the respondent over to her to administer the breath tests. On its face the certificate recorded the particulars of the test and the readings recorded when they were administered. When tendered, the certificate contained relevant and material evidence and was conditionally admissible. An objection to its admissibility was not then pertinent.

[93] When tendered and conditionally admissible, the certificate, if offered as evidence of the truth of its contents, was hearsay. In documentary form, it was an out-of-court statement of the declarant that could only become evidence of the truth of its contents upon proof of an applicable hearsay exception. To trigger that exception, it was incumbent on the Crown to establish that the analysed samples were of breath provided by the respondent pursuant to a demand under s. 254(3). The respondent had every reason to expect that evidence to this effect would be adduced from PC Morris in subsequent questioning. In a similar way, an objection based on a lack of reasonable grounds was premature since the officer's evidence was incomplete.

[94] It was not until the end of the Crown's case that it became clear that an argument was available to the respondent that the Crown had failed to establish, by direct or circumstantial evidence, that PC Morris had demanded of the respondent under former s. 254(3) that he provide breath samples for blood alcohol concentration analysis. If the arguments succeeded, two consequences followed:

i. the presumptive inferences available under former ss. 258(1)(c) and (g) were not available to prove the respondent's blood alcohol concentration at the time he operated his motor vehicle; and

ii. the Crown had failed to prove the actus reus of the offence of operating a motor vehicle with a prohibited blood alcohol concentration.

[95] The essence of the argument advanced reduced to one about the adequacy of the Crown's proof of an essential element of the offence. This was not an issue controlled by our prior decisions in Gundy and Kutynec.

[96] This ground of appeal fails.

Conclusion

[97] In the result, I would dismiss the appeal and affirm the order of the appeal judge, subject to one variation.

[98] The trial judge found the respondent guilty of both counts. He entered a conviction on the count of impaired operation, and a conditional stay of the finding of guilt of operation with a prohibited blood alcohol concentration. The appeal to the Summary Conviction Appeal Court was of the conviction of impaired operation, not the conditional stay.

[99] The appeal judge considered the stayed count first. He set aside the stay and entered an acquittal on that count. He then considered the conviction of impaired operation, allowed the appeal, set aside the conviction, and ordered a new trial on that count.

[100] In my respectful view, the appeal judge erred in the way he approached the conviction and the stayed count.

[101] The appeal judge was concerned with the appeal from the respondent’s conviction of impaired operation. Once he had decided the evidentiary issue, the appeal judge should have considered the effect of the error he found on the validity of the respondent’s conviction of impaired operation. When he concluded that the conviction would not stand, the appeal judge was required to allow the appeal, set aside the conviction, and determine whether to order a new trial or enter an acquittal. He decided to order a new trial. The successful appeal from conviction dissolved the conditional stay on the count of operation with a prohibited blood alcohol concentration. It also engaged the remedial authority in s. 686(8) of the Criminal Code, made applicable to the Summary Conviction Appeal through its incorporation by s. 822(1).

[102] In the exercise of his authority under s. 686(8), the appeal judge should have then followed the “more appropriate” course described by the Supreme Court of Canada in R. v. P. (D.W), 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, and remitted the case to the trial court for adjudication on the evidence adduced at the new trial. In first considering the stay, rather than the conviction on appeal, he erred. In my view, the proper disposition of the stayed count is to set aside the stay and order a new trial on both counts. An order to that effect should issue.

Released: “DW” December 11, 2020

“David Watt J.A.”

“I agree. Gary Trotter J.A.”

“I agree. Harvison Young J.A.”