Court of Appeal for Ontario

Date: 2025-07-04
Docket: COA-23-CR-1191, COA-23-CR-1192 & COA-23-CR-1267
Coram: van Rensburg, Miller and Gomery JJ.A.

Parties

• COA-23-CR-1191:

  • His Majesty the King (Respondent)
  • Yewon Kim (Appellant)

• COA-23-CR-1192:

  • His Majesty the King (Respondent)
  • Marcos Hepfner (Appellant)

• COA-23-CR-1267:

  • His Majesty the King (Respondent)
  • David Gault (Appellant)

Counsel:
Adam Little, for the appellants
James V. Palangio and Charmaine M. Wong, for the respondent

Heard: 2024-10-11

On appeal from the decisions of the Summary Convictions Appeal Court:

• April 19, 2022 (Regional Senior Justice Patrick Boucher, Superior Court of Justice), dismissing the appeal from the conviction entered on March 25, 2021 by Justice Cathy Mocha (COA-23-CR-1191).
• October 26, 2022 (Justice Ian Smith, Superior Court of Justice), dismissing the appeal from the conviction entered on September 4, 2020 by Justice Wayne G. Rabley (COA-23-CR-1192).
• May 18, 2023 (Justice Jill Presser, Superior Court of Justice), allowing the appeal from the acquittal entered on July 30, 2021 by Justice David P. Cole (COA-23-CR-1267).

Overview

[1] These appeals arise from two convictions and an order for a new trial in three impaired driving cases. Each of the appeals raises a common question of statutory interpretation: briefly, what evidence must the Crown adduce at trial before it can avail itself of a conclusive presumption of accuracy in blood alcohol concentration (“BAC”) tests conducted with an Approved Instrument (“AI”) in prosecutions for impaired driving under s. 320.14 of the Criminal Code?

[2] Although this is the first time this issue has arisen in this court, it has been addressed by other courts throughout Canada. The appellants’ argument – that the Crown must adduce direct evidence from an analyst of the certification of an alcohol sample used to calibrate an AI – finds support in an early decision from the Alberta Court of Appeal, R. v. Goldson, 2021 ABCA 193. However, the preponderance of authority is to the contrary, following the Yukon Court of Appeal in R. v. MacDonald, 2022 YKCA 7. As explained below, I agree with the interpretation set out in MacDonald, and am not persuaded by the additional arguments raised by the appellants that were not before the MacDonald court. I would accordingly dismiss each of the appeals. It is not necessary to address additional issues raised by Ms. Kim.

[3] In what follows, I will provide an overview of the legislation in question and the procedural history of the appeals, a review of some of the leading cases in which the issues on appeal have been addressed, and a summary of the applicable principles of statutory interpretation, and then address the appellants’ arguments.

The Legislation

[4] It is an offence in Canada, by operation of s. 320.14(1)(b) of the Criminal Code, for a driver to have “within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.”

[5] The provisions of the Criminal Code governing impaired driving offences (contained in Part VIII.1) were substantially revised in 2018 through An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 (the “AACC”). Section 320.31(1) now provides that the results of a BAC test conducted with an AI are conclusive proof of an accused’s BAC if specified conditions are met. These conditions require that, prior to administering a BAC test, a qualified technician must: (1) calibrate the AI against a blank sample, and (2) conduct a system calibration check against a standard alcohol sample that has been certified by an analyst. The provision in full reads:

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[6] A qualified technician is authorized to provide evidence of the BAC reading from the AI by way of certificate, and s. 320.32(1) provides that a certificate of a qualified technician (and others) is evidence of the facts alleged in the certificate. Under subsection (2), before a certificate can be received as evidence at trial, the Crown is required to produce a copy to the accused and give notice of the intention to produce it at trial. Under subsection (3), the accused can then apply for an order that the author of the certificate attend the trial for cross-examination, but this must be done at least 30 days prior to trial. Sections 320.32 and 320.33 address the evidential value of a printout from the AI. Specifically:

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

[7] Sections 320.32 to 320.34 impose disclosure obligations on the Crown. In particular, I note s. 320.34(1):

320.34 (1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met, namely:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

[8] In order for the Crown to have recourse to the presumption of accuracy, the qualified technician must attest to the results of the BAC analysis and that the preconditions for accuracy are satisfied, including that the alcohol sample used to calibrate the AI was certified by an analyst.

[9] There are thus two certificates of evidence contemplated: one from the qualified technician speaking to evidence of the BAC reading from the AI and one from the analyst speaking to the quality of the alcohol sample that the qualified technician uses to calibrate the approved instrument.

Procedural History

[10] All three cases on appeal are prosecutions for operating a motor vehicle with a BAC of 80 or over. In each case, the Crown tendered evidence from a qualified technician who conducted the blood alcohol test, but not from the analyst who certified the sample of alcohol that was used in the system calibration check. All three appeals turn on whether the statutory regime requires the Crown to either call the analyst to testify to the veracity of the sample of alcohol used in the system calibration check or tender the certificate of the analyst (the “COA”) in order for the Crown to rely on the BAC test as conclusive proof of the accused’s BAC at the time of operation of the vehicle.

[11] The procedural history of each of the three appeals is provided below.

(1) R. v. Hepfner

[12] At Mr. Hepfner’s trial, the Crown produced a Certificate of the Qualified Technician (“CQT”). The certificate, however, was prepared under the pre‑amendment statutory regime, and accordingly it did not satisfy the evidential requirements of the new regime. To overcome this deficiency, the qualified technician testified to the facts that were required to have been included in the certificate for it to satisfy s. 320.31(1). The defence objected to the qualified technician’s evidence on the basis that the qualified technician had no direct knowledge of the alcohol sample used for the system calibration check, and the technician’s evidence was therefore hearsay and inadmissible. The trial judge rejected this argument and convicted Mr. Hepfner.

[13] On the summary conviction appeal, Mr. Hepfner renewed the hearsay argument. The SCAJ rejected the argument on the basis that, prior to the 2018 amendments, the Crown had been able to rely on the CQT to prove that the alcohol sample used in the system calibration check was suitable, and that the amendments had not created any new evidentiary hurdles for the Crown. Following MacDonald, the SCAJ held that the 2018 amendments preserved the Crown’s ability to rely on either the qualified technician’s testimony or the CQT in order to prove the alcohol sample was properly certified by an analyst. The appeal was dismissed.

(2) R. v. Gault

[14] Mr. Gault was acquitted at trial on the basis that the trial judge found that the Crown was not permitted to rely on the presumption of accuracy in s. 320.31, because the first breath sample taken was defective, and the officer did not recalibrate the device before taking another sample.

[15] On appeal by the Crown, the SCAJ overturned that finding. Mr. Gault argued, as a new issue on appeal, that the CQT did not provide admissible evidence that the alcohol sample used as a benchmark for the system calibration test had been certified by an analyst. Relying on the SCAJ decision in R. v. Hepfner, 2022 ONSC 6064, the SCAJ disagreed and allowed the appeal.

(3) R. v. Kim

[16] Ms. Kim was convicted at trial. On appeal, she raised the fresh argument that the Crown’s evidence, which was given by way of filing the CQT, was hearsay and inadmissible and that the Crown could therefore not satisfy the requirements of s. 320.31 to benefit from the presumption of accuracy.

[17] The SCAJ declined to entertain the hearsay issue for the first time on appeal, as this would prejudice the Crown. Had the Crown been given notice that there was an issue as to the sufficiency of its evidence, it could have led other evidence at trial, such as filing the COA. The appeal was dismissed.

Issues on Appeal

[18] As stated above, the three appeals raise a single common issue concerning the interpretation of the amended Criminal Code provisions, particularly with respect to the operation of ss. 320.31(1)(a), 320.32, and 320.34(1)(e): in order to rely on the presumption in s. 320.31(1), that the results of the analyses are conclusive proof of the BAC, is the Crown required by the amended provisions to tender a COA at trial or to call the oral evidence of the analyst to prove that the alcohol standard sample has been certified by the analyst as accurate? Or is the Crown able to rely on the presumption of conclusive proof by tendering the CQT as to the proper calibration of an AI?

The Case Law

[19] This evidential issue has been canvassed many times in the trial courts and Summary Conviction Appeal Courts in Ontario. The preponderance of Ontario cases has found the statutory regime provides for the Crown to rely on the conclusive proof of BAC without tendering the certificate of the COA or direct evidence from the analyst as to the alcohol standard used for the calibration check: see e.g., R. v. Bahman, 2020 ONSC 638; R. v. Porchetta, 2021 ONSC 1084; and R. v. Dulai, 2021 ONSC 2798.

[20] There is, however, conflicting case law from appellate courts in other jurisdictions. The appellants’ position is supported by the Alberta Court of Appeal’s decision in Goldson. The Crown’s position is supported by the Yukon Court of Appeal’s decision in MacDonald, which has been applied by the New Brunswick Court of Appeal in Rousselle v. R., 2024 NBCA 3 and Larocque v. R., 2024 NBCA 4, and the Québec Court of Appeal in R. v. Vigneault, 2024 QCCA 793.

[21] Given that the appeals in Goldson and MacDonald are the leading cases for the two conflicting interpretations of the AACC, they are briefly summarized below.

(1) R. v. Goldson

[22] The Alberta Court of Appeal in Goldson concluded that, by repealing the former provisions which prescribed detailed content for certificates at ss. 258(1)(e)-(i), and replacing them with a single, general certificate provision at s. 320.32(1), Parliament intended to change the scope of a qualified technician’s testimony as to the proper function of an AI, and the use to which a COA could be put: Goldson, at paras. 62, and 70-73.

[23] The court held that the ability to provide direct evidence on matters within the qualified technician’s personal knowledge or scope of expertise does not support the qualified technician’s ability to provide hearsay evidence of matters involving the analyst. The court rejected the Crown’s position that, because it is obligated to disclose the certificates to the defence, the defence had what it needed to bring any meritorious challenge to the accuracy of the breath samples. The court commented that this reasoning shifts the burden to the accused to disprove that the statutory preconditions to its operation are met. Lastly, an accused can only bring an application to cross-examine the analyst after the Crown gives notice that it intends to produce the COA at trial under ss. 320.32(2) and (3), and there is no process for the accused to challenge the information contained within it if the Crown is not required to either call the analyst as a witness or to tender the COA: Goldson, at paras. 74-77, and 83.

[24] The court concluded that under the new regime, in order to benefit from the statutory presumption, the Crown would now be required: (i) to tender the CQT; and (ii) to prove the alcohol standard either through the viva voce evidence of the analyst or by tendering the COA at trial. The evidence of the qualified technician or the CQT as to the alcohol standard cannot be used for this purpose.

[25] Consequently, the court allowed the appeal and acquitted Mr. Goldson of his “over 80” charge, finding that without evidence that the alcohol standard was certified by an analyst, the Crown had failed to establish the presumption of accuracy.

(2) R. v. MacDonald

[26] The Yukon Court of Appeal found the reasoning in Goldson to be mistaken. The primary thrust of MacDonald is that, although the Crown is required to prove the certification of the alcohol standard, the clear words of s. 320.32(1) provide that the CQT is “evidence of the facts alleged in the certificate”. Where a qualified technician states that the system calibration check was conducted against an alcohol standard that was certified by an analyst, that is evidence that the alcohol standard was certified by an analyst. Nothing further is required to have recourse to the presumption of accuracy: MacDonald, at paras. 61, 64, and 75.

[27] Chief Justice Bauman explained, at para. 59:

Before the 2018 Amending Act, asserting the suitability of the sample was only necessary at first instance if the Crown sought to establish the preconditions of accuracy by way of the certificate of the qualified technician. Since the 2018 Amending Act, that the qualified technician used a certified alcohol standard is something that must be established in every case in which the Crown seeks to take advantage of the presumption of accuracy contained in s. 320.31(1). The question is whether this structural change makes a difference as to whether the qualified technician may assert that fact in their certificate. [Emphasis in original.]

[28] The court rejected the argument that the legislative reorganization, which relocated to s. 320.31(1) the requirement to establish that the alcohol standard was certified by an analyst, meant that there was an intention to change the law. Instead, looking at the provision as a whole, the court accepted that the explanation for the move was the change in the nature of s. 320.32(1), which now addressed certification for a broad range of analysts, medical practitioners, and technicians: MacDonald, at para 64. Given that the section was no longer addressed solely to BAC testing, a reference to an alcohol standard would be out of place.

[29] Finally, s. 320.31(2) provides that the result of an analysis made by an analyst is proof of a person’s BAC “in the absence of evidence tending to show that the analysis was performed improperly”, and the court noted that the accused may challenge any of the certificate evidence that the Crown has put forward to establish the preconditions under subsections 320.32(2) and (3). Those sections provide as follows:

Notice of intention to produce certificate
320.32(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

Attendance and cross-examination
320.32(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

Principles of Statutory Interpretation

[30] The three appeals under consideration advance a question of statutory interpretation. Although the parties ultimately disagree on the correct interpretation, the governing method of statutory interpretation – sometimes referred to as the modern rule – is longstanding, stable, and uncontroversial, and has recently been elaborated in a series of decisions from the Supreme Court.

[31] The “modern principle requires a court to interpret statutory language ‘according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole’”: Piekut v. Canada, 2025 SCC 13, at para. 43, citing Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10, and R. v. Downes, 2023 SCC 6, at para. 24; see generally Piekut, at paras. 42-49.

[32] “Statutory interpretation is centred on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent”: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32. Thus, the text of the provision under consideration is always the starting point and the anchor of the analysis: “just as the text must be considered in light of the context and object, the object of a statute and that of a provision must be considered with close attention always being paid to the text of the statute, which remains the anchor of the interpretive exercise”: Commission des droits de la personne et des droits de la jeunesse v. Directrice de la protection de la jeunesse du CISS A, 2024 SCC 43, at para. 24. Furthermore, statutory interpretation requires attending not only to the ends the legislature sought to achieve, but the specific means the legislature chose to achieve that purpose: “The text specifies, among other things, the means chosen by the legislature to achieve its purposes. These means ‘may disclose qualifications to primary purposes, and this is why the text remains the focus of interpretation’”: Québec (Commission des droits de la personne et des droits de la jeunesse), at para. 24, citing M. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022) 59 Alta. L. Rev. 919, at p. 927.

[33] Sometimes the meaning of a word or a sentence is ambiguous, potentially leaving the reader uncertain as to which of two or more meanings was intended. Most semantic ambiguity is easily resolved by reference to the immediate context in which the words are used. Where ambiguity appears irresolvable, extraneous evidence of intent can be permitted. Unlike other forms of textual indeterminacy – such as vagueness – irresolvable ambiguity in legislative drafting is never intentional and is extremely rare: Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555, at paras. 44-47.

[34] The nature of litigation – a dispute between two opposed parties – means that judges are often presented with two opposed interpretations of statutes. A common error in litigating interpretive questions is to attribute these differences in interpretation to semantic ambiguity: Piekut, at paras. 44 and 48. But uncertainty and disagreement about the meaning of a legislative provision can have many causes. Some disagreements result from non-ambiguous linguistic indeterminacy, such as the intentional use of generality and vagueness in legislative drafting. Because the uncertainty in these cases does not arise from ambiguity, it does not trigger the generous resort to extrinsic interpretive aides that are appropriate in cases of irresolvable ambiguity.

The Appellants’ Argument

[35] For the Crown to rely on the presumption of accuracy in a BAC reading, s. 320.31(1)(a), on a plain reading, requires that the Crown prove, among other things, that the qualified technician conducted a calibration check which is within 10% of the target value of an alcohol standard that is certified by an analyst.

[36] The centrepiece of the appellants’ argument is that the Crown must prove the alcohol standard through the direct evidence of the analyst. The appellants argue that the Crown’s practice of proving the AI was functioning properly through the CQT is inadequate because the qualified technician has no direct knowledge that the alcohol standard used as a benchmark is what it purports to be. A qualified technician’s statement – whether via certificate or viva voce – that the alcohol standard that he or she used was certified by an analyst is hearsay and inadmissible, because the qualified technician’s source of that information is simply the certificate provided by the analyst. The qualified technician therefore has no means of knowing whether the statements provided in the certificate of the analyst about the alcohol standard are true and accurate.

[37] The appellants argue that, for the calibration check to have evidentiary value, the target value must be known and the alcohol standard must have the target value it purports to have. It is for this reason that the AACC requires the alcohol standard be certified by an analyst. Without this assurance, according to the appellants, it cannot be known that the AI was functioning properly and that the BAC reading was accurate and reliable.

[38] The appellant’s argument proceeds, in outline, in three steps:

1. The text of ss. 320.31(1) and 320.32, when read in context of the AACC as a whole, cannot be read as permitting the admission of evidence about the alcohol standard through either the viva voce evidence of the qualified technician or the CQT, because in either case the evidence would be hearsay and therefore inadmissible;
2. The AACC must be read as requiring the direct evidence of the analyst to prove the alcohol standard because such a reading achieves the intended balance between the constitutional fair trial rights of the accused and trial efficiency; and
3. The contrary interpretation would deny the accused the ability to cross-examine the analyst and would be inconsistent with the right to make full answer and defence.

Analysis

[39] The crux of the appeal is the interpretation of s. 320.31(1). That section provides that the results of the breath sample analysis will be conclusive proof of the accused’s BAC when three conditions are met. The salient condition, for the purposes of this appeal, is that “the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst.”

[40] On a plain reading of the text, this section does no more than direct that, in order for the analysis to be considered conclusive proof of BAC, the qualified technician must conduct two tests to ensure the machine is functioning correctly. One of the tests is a system calibration check. With respect to calibration, the machine will be deemed reliable if it returns a result within 10% of the target value of an alcohol standard. The alcohol standard that is used by the qualified technician for calibration must have been certified by an analyst.

[41] The appellants’ argument is framed in several different ways, but the core is that the MacDonald interpretation advocated by the Crown – that the certificate of the qualified technician attesting that a certified alcohol standard was used is sufficient – is inconsistent with the text and context of the AACC.

[42] The argument of inconsistency with the text is difficult to make. As I will explain below, the appellants have asserted the conclusion but not made the argument.

[43] The appellants’ second argument is more complex. That argument asserts that the purpose of the AACC is twofold: (1) to provide a more efficient system for adjudicating impaired driving offences, and (2) to provide an evidential regime that better protects the s. 11(d) Charter rights of an accused. The appellants argue that the fair trial rights of an accused were not well protected by the previous legislative regime, and that Parliament overhauled the Criminal Code to provide enhanced legal protection under pressure from the Supreme Court’s decision in R. v. St‑Onge Lamoureux, 2012 SCC 57, which I will address further.

[44] The appellants argue that the AACC was therefore intended to work as a substantial change in the law. The nature of this change is that the previous practice of not requiring direct evidence of the certification of the alcohol standard was replaced with a requirement that the analyst provide evidence, either viva voce or by filing a certificate. This new requirement enhances the rights of the accused by providing the opportunity to cross-examine the analyst on the certification of the alcohol standard. The appellants also argue that this purpose of enhancing the fair trial protections of the accused is evident when the AACC is contrasted with the legislation it superseded, and any ambiguity in the provisions of the AACC must be resolved in favour of increased fair trial protection.

[45] I do not agree that this argument succeeds. As the Yukon Court of Appeal stated in MacDonald: “we must give effect to the clear words of s. 320.32(1) that the certificate of the qualified technician is ‘evidence of the facts alleged in the certificate’”. Through the standard form certificate, the qualified technician certifies that “the alcohol standard had a target value of 100 mg of alcohol in 100 mL of blood,” and that it “was certified by an analyst”. Again, as the court held in MacDonald: “if the qualified technician’s certificate is ‘evidence of the facts alleged’ in it, the Crown has, by filing the certificate introduced evidence that the alcohol standard was certified by the analyst.”

[46] The legislation is clear and precise, without ambiguity or other form of indeterminacy on its face. That is enough to dispose of the argument that MacDonald is inconsistent with the text. But does ambiguity arise when, as the appellants contend, the broader context is considered?

[47] No. The MacDonald court rightly rejected the argument that the legislative history reveals any ambiguity in the meaning of the text. At para. 63, the court held that the import of the legislative change, as far as certification of the alcohol standard goes, is a modest one:

There is no longer a distinction in the statutory text between the evidence-by-certificate and evidence-by-testimony approach. The reorganization renders the evidentiary requirements more uniform between these two approaches – no matter which approach the Crown uses to establish the preconditions for the presumption of accuracy, it must now always establish in its case that the qualified technician used an alcohol standard that was certified by an analyst.

[48] This leaves the argument that the appellants’ reading of the statute better advances the AACC’s purpose of promoting fair trial rights. The premise of the argument is that the Supreme Court of Canada in St-Onge Lamoureux found that the previous provision “violated” the s. 11 Charter rights of an accused and was only “saved” under s. 1. Accordingly, the successor provision sought to extend Charter protections further, such that there would be no prima facie rights “violation” to be “saved”.

[49] The argument fails for two reasons.

[50] First, the argument rests on a misunderstanding of the grammar of Charter rights. Charter adjudication proceeds in two steps. The first step is best understood, following the text of s. 1 of the Charter which speaks of “reasonable limits”, as the determination of whether a person’s Charter right has been limited in some way. Although courts sometimes speak of “violations” or “infringements” at this first stage, the Supreme Court made it abundantly clear in Frank v. Canada (Attorney General), 2019 SCC 1, at paras. 40 and 42, that when it uses the language of “violation” at this first analytical stage, it is used in an attenuated sense and is not a statement that the claimant’s Charter rights have been violated. That conclusion can only be reached after a consideration of the second analytical step known as the Oakes test. It is only after considering the limits on the claimant in the context of what would constitute reasonable limits in a free and democratic society, that a court can pronounce that a person’s Charter rights have been violated: McKitty v. Hayani, 2019 ONCA 805, at para. 81.

[51] All this is to say that the appellants overstate the significance of the finding of a first stage limit in St-Onge Lamoureux. There was no finding of a violation of a Charter right, and there is no reason to accept the appellants’ assertion that Parliament would have wanted to avoid a first stage rights limitation.

[52] Second, even without the misapprehension of the nature of Charter rights, the appellants fall afoul of the purpose error. Parliament intends not only ends, but also means. Where the means are stated clearly, as they are in this case, no interpretive difficulty arises. Purpose cannot be allowed to override the clear language Parliament has used.

[53] In any event, the appellants’ argument rests on a further misapprehension – that an accused’s constitutional right to make full answer and defence would be prejudiced by an inability to cross-examine the analyst and that Parliament could not have intended this. But that is not the case. As the court in MacDonald noted, under s. 320.32(2), the COA is to be disclosed to the defence prior to trial if the Crown wishes to rely upon it as evidence. If there appears to be reason to cross-examine the analyst on the COA, the appellant can apply before trial for leave to cross-examine under s. 320.32(3). If the Crown fails to disclose the COA, and the accused wishes to argue he or she has not been provided with information sufficient to determine whether the standard used was suitable, this can be dealt with by reference to the specific disclosure obligations in s. 320.34(1), invoking the same remedies as for any other shortcoming in disclosure. No unfairness ought to result.

[54] I would dismiss this ground of appeal. It is not necessary to address the ancillary issues raised by Ms. Kim.

Disposition

[55] I would dismiss the appeals.

Released: July 4, 2025

“K.M.v.R.”

“B.W. Miller J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. S. Gomery J.A.”