Ontario Court of Justice

Date: 2019-05-14

Court File No.: Newmarket 18-04725

Between:

Her Majesty the Queen

— AND —

Gary McRae

Judgment

Evidence and Submissions Heard: May 13, 14, 2019

Delivered: May 14, 2019

Counsel:

• Mr. Rob De Chellis — counsel for the Crown
• Ms. Heather Spence — counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Sheffer was on general patrol when she was advised of a report by an LCBO store employee that a patron who appeared to be intoxicated was refused service. The employee saw the person leave the store and enter a vehicle. PC Sheffer was provided with a description of the vehicle and the driver. She drove to a plaza that contained a Beer Store which was a distance from the LCBO but the next place one could buy alcohol in that area. She saw a vehicle generally matching the description given and she caused that vehicle to stop. The driver Mr. McRae also matched the description given in the report.

[2] Constable Sheffer advised Mr. McRae of the reason for the stop and asked him if he'd had anything to drink. His admission of drinking and the strong odour of alcohol led the officer to conduct an Approved Screening Device (ASD) test. The failure of that test led to further Approved Instrument tests at the station. The tests at the station showed readings of 160 mgs and 150 mgs truncated and the accused was charged with operating a vehicle with a blood alcohol level in excess of the legal limit of 80 mgs.

[3] The defence conceded that the alleged breaches of sections 8, 9, 10(b) of the Charter were answered in the evidence or would not reasonably lead to a remedy under s 24(2). I agree. Three issues remain:

• Presumption of Identity – The Shaikh issue – Whether the s 258(1)(c) presumption of identity continues to apply to existing s 253 cases despite the C-46 amendments to the Criminal Code that repealed that section.

• Presumption of Identity – In the alternative, if the s 258(1)(c) presumption continues to apply to s 253 cases, whether the Crown has proved that the breath tests were taken "as soon as practicable" (ASAP) as required under s 258(1)(c)(ii) where police caused a 17 minute delay by facilitating right to counsel after the accused's request.

• Presumption of Accuracy – The Flores Vigil argument – Whether the Crown has proved the requirements in s 320.31(1) to permit them to rely upon the presumption of accuracy set out in that section which Parliament has explicitly applied retrospectively to existing cases.

Presumption of Identity – The Shaikh Issue

[4] The defence submits that Parliament erred in the repeal of s.258 of the Criminal Code without including express provision for retrospective application as was done with regard to the presumption of accuracy. For these transitional cases, expert opinion evidence must be called to relate the breath test results to the time of operation – R v Shaikh 2019 ONCJ 157. The defence concedes that the result is an anomaly as the stated goal of the amendments was to simplify not complicate drinking and driving trials.

[5] To this point the Shaikh decision has been followed in two reported cases: R v Jagernauth 2019 ONCJ 231, R v Melhado [2019] OJ No 1993 (CJ).

[6] Several cases have taken a different view, that just as the parties agree the s 253 offence continues to apply to existing cases by virtue of the provisions of the Interpretation Act RSC 1985 c I-21, so too do the related provisions of s 258 that Parliament deemed necessary in those cases. Several decisions explain this approach: R v Sivalingam 2019 ONCJ 239, R v Porchetta 2019 ONCJ 244, R v Hiltschuk [2019] OJ No 1015 (CJ), R c St-Louis Laberge 2019 QCCM 54, R v McAlorum 2019 ONCJ 259, R v Chavez 2019 ONCJ 278 (Obiter), R v Fram [2019] OJ No 2276 (CJ).

[7] The reasons in Shaikh are well written and comprehensive, but I find the decisions in Sivalingam and Porchetta to be persuasive on this point. I find the s 258(1)(c) presumption of identity continues to apply to this transitional case.

As Soon As Practicable

[8] The phrase "as soon as practicable" means nothing more than that the tests were taken within a reasonably prompt time. "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." – R v Vanderbruggen, [2006] OJ No 1138 (CA) at para 12.

[9] The dispute in this case centres on one 17 minute period where the defence submits the police acted unreasonably. Their offence – facilitating contact with counsel after the accused asked to speak to a lawyer. The defence objection is based on the fact that when the accused was first read his s.10(b) advice upon arrest at the roadside he said "no" when asked whether he wanted to call a lawyer then. PC Sheffer told him that he could "always change his mind later." At the station during a booking search marijuana was found. This resulted in the accused being read his right to counsel advice in relation to possession of marijuana. At that time in the station the accused told the officer he wished to speak to duty counsel. She facilitated that request and Mr. McRae obtained legal advice before any breath tests were conducted.

[10] The defence notes that given the small amount involved the police did not in fact proceed with a marijuana possession charge. The defence submits that in context the request to speak with a lawyer could only refer to the marijuana charge and so permitting the accused to obtain advice about a charge that was not ever laid was unreasonable and contrary to s 258(1)(c)(ii).

[11] I disagree with the defence that the evidence shows the accused only had one purpose in asking to speak with counsel. I disagree with the submission that the officers were required to "clarify" with the accused why he wanted to speak with a lawyer. The officers in this case were right not to monitor or interfere in any way with an accused's request to speak with a lawyer other than to facilitate that request – R v Burlingham, [1995] SCJ No 39.

[12] As PC Sheffer said, the accused was entitled to change his mind and request counsel at any time. Once he made that request the police acted appropriately in contacting duty counsel. Had they refused the request and forced the accused to the breath tests without legal advice giving priority to the ASAP timeline that would have been unreasonable and certainly would have been the subject of a different application at this trial.

[13] All of the time from the initial stop to the time of testing was reasonably accounted for in the evidence of the officers. The Crown has proved compliance with the statutory conditions that permit them to rely on the s 258 presumption of identity.

Presumption of Accuracy – The Flores Vigil Issue

[14] The presumption of accuracy in s 258 was expressly repealed by the C-46 2018 c 21 amendments. Section 320.31(1) now applies to all cases – s 32(2).

[15] In R v Flores Vigil 2019 ONCJ the court held that the Crown failed to establish the concentration of the alcohol standard used to calibrate the Approved Instrument which is required under s 320.31. In that case the breath technician reviewed the certificate of analyst which did not state the concentration but merely identified the standard as "suitable for use". The breath technician's expectation and understanding that the alcohol standard was always set to 100 mgs wasn't sufficient proof. The Flores case was followed in R v Mundy [2019] OJ No 1996 (CJ), R v Vinocal [2019] OJ No 1997 (CJ).

[16] This is another issue on which some judges of this court have arrived at a different conclusion. See: R v Does 2019 ONCJ 233, R v Porchetta 2019 ONCJ 244, R v Baboolall 2019 ONCJ 204, R v Fram [2019] OJ No 2276 (CJ), R v McAlorum 2019 ONCJ 282.

[17] In R v Chavez 2019 ONCJ 278 the court mentioned in obiter that there was a further argument regarding judicial notice that might apply on this issue. While it's true that for decades trial courts in Ontario have heard evidence that the alcohol standard solution used in the calibration of the approved instrument during the test sequence is set to 100 mgs, that observation might not meet the strict test for judicial notice – R v Find 2001 SCC 32.

[18] The potential argument identified in Chavez that 100 mgs might be a national standard may not be factually true. An approved instrument is certain to be in working order if it passes all of the diagnostic tests and returns a correct reading on each calibration test against the known external standard within the identified level of tolerance. The test results are certain to be correct, cannot be in error, if the approved instrument passed those internal diagnostic checks on each test sequence and passed the calibration test before each subject breath test. Any instrument can fail, but no failed instrument can pass that strict test protocol. That test protocol has been part of the software of every approved instrument since the 1990's. The essential procedures have now been incorporated into the Criminal Code s 320.31(1) in response to R v St-Onge Lamoureux 2012 SCC 57.

[19] But the Code does not specify a particular level at which the alcohol standard must be set. The Recommended Operational Procedures of the Canadian Society of Forensic Science Alcohol Test Committee published 18 December 2018 upon which the Code provision is based requires that a system calibration check must be conducted before each subject test against a standard "within the range of 50 to 150 mgs/100ml" and the approved instrument must give a reading within 10% of the target value of that alcohol standard. While Ontario alcohol standards are all certified as being at 100 mgs/100ml by the Center of Forensic Sciences, the standard may differ in other provinces.

[20] The Crown must prove the elements of s 320.31(1) and I'm mindful that the issue is a factual one that does not necessarily turn on a point of law. I agree with the decision of my brother Justice Rose in R v Porchetta 2019 ONCJ 244 as persuasive on this point and I find the Crown has proved each of the requirements of s 320.31 have been met where:

• The qualified breath technician testified that he conducted a system blank test before each sample was taken resulting in readings of 0 mgs each time showing there was no residual alcohol in the instrument.

• The qualified breath technician testified that he used an alcohol standard from Alcohol Countermeasures Systems that was not expired. Each portion of the solution is good for up to 50 calibration checks. The instrument will lock out the operator if the number of checks approaches 50 to ensure only a valid standard is used.

• The breath technician is trained that the alcohol standard used must register a value of 100 mgs/100ml plus or minus 10 mgs when heated to 34 degrees. The approved instrument was at the proper operating temperature at the time of these calibration tests.

• The breath technician checked the certification for the alcohol standard by the Centre of Forensic Sciences (CFS). While the CFS certification does not list the standard level at 100 mgs he knows by his training that is the only standard used by CFS. The solution bottle also had the number 100 written on it confirming the standard was set to 100 mgs.

[21] I do not find the fact that the breath technician did not retain that particular bottle or produce it at trial could reasonably detract from his evidence on this point.

Conclusion

[22] I have reviewed the evidence as a whole and I can find no evidence or circumstance that could reasonably leave a doubt. I find the Crown has proved the charge alleged beyond a reasonable doubt.

Delivered: 14 May 2019.

Justice Joseph F. Kenkel