Court File and Parties

Ontario Court of Justice

Date: 21 May 2019

Court File No.: Brampton 3111 998 17 13051

Between:

Her Majesty the Queen

— AND —

Jashandeep Bhandal

Before: Justice G.P. Renwick

Heard on: 02-03, 21 May 2019

Reasons for Judgment released on: 21 May 2019

Counsel

R. Morrow — counsel for the Crown

A. Zaitsev — counsel for the defendant Jashandeep Bhandal

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with having driven his car on 21 October 2017 with an excess blood alcohol concentration ("excess BAC" or "over 80") under s. 253(1)(b) as that now-repealed section of the Criminal Code ("Code") then read.[1]

[2] On 09 May 2019 I ruled on the Defendant's Charter Application and dismissed all claims.

[3] There were two issues raised at the conclusion of the trial. The first issue is whether or not the presumption of identity[2] (that the Defendant's BAC, at the time of testing was the same as at the time of the alleged offence) has survived the repeal of ss. 249 - 261 of the Code. The second issue raised questions regarding the requirements of the revised presumption of accuracy: can the prosecution rely upon the breath testing results to meet its burden to prove that the Defendant's BAC was impermissibly high?

[4] To my knowledge, there are several cases which have considered the primary issue at first instance. By their judgment date, they are: R. v. Hiltschuk, [2019] O.J. No. 1015 (C.J.) per LeDressay J.; R. v. Shaikh, 2019 ONCJ 157, [2019] O.J. No. 1528 (C.J.) per Burstein J.; R. v. Melhado, [2019] O.J. No. 1993 (C.J.) per Brown J.; R. v. Jagernauth, [2019] O.J. No. 1927 (C.J.) my decision; R. v. Sivalingam, [2019] O.J. No. 1975 (C.J.) per Schwarzl J.; R. v. Porchetta, [2019] O.J. No. 1985 (C.J.) per Rose J.; R. v. McAlorum, [2019] O.J. No. 2123 (C.J.) per Latimer J.; R. v. Fram, [2019] O.J. No. 2276 (C.J.) per Douglas J.; and R. v. McRae, 2019 ONCJ 310 per Kenkel J.

[5] Only Jagernauth, Melhado, and Shaikh have held that the presumption of identity no longer exists for transitional prosecutions begun or continued after 18 December 2018. All other courts have ruled the other way.

[6] Contrary to my earlier decision,[3] for the reasons provided below, I find that the presumption of identity remains intact for cases charged under the old statutory regime which are tried after the new drink-driving laws came into effect.

[7] As regards the revised presumption of accuracy, courts have also disagreed. Justice C.A. Parry wrote a compelling decision upon which the Defendant relies, R. v. Flores-Vigil, 2019 ONCJ 192, [2019] O.J. No. 1730 (C.J.). This decision has been followed by Justice M.E. Graham in R. v. Mundy, [2019] O.J. No. 1996 (C.J.) and R. v. Vinocal, [2019] O.J. No. 1997 (C.J.). The prosecution places reliance on the following decisions which essentially rejected Justice Parry's analysis: R. v. Does, [2019] O.J. No. 1924 (C.J.) per De Filippis J.; R. v. Porchetta, supra; R. v. McAlorum, [2019] O.J. No. 2249 (C.J.) per Latimer J.; R. v. Chavez, [2019] O.J. No. 2247 (C.J.) per Parry J.; R. v. Fram, supra; and R. v. McRae, supra, in addition to the prior decision of R. v. Baboolall, 2019 ONCJ 204, [2019] O.J. No. 1760 (C.J.) per Wakefield J.

[8] Largely for the reasons given in Does, Porchetta, McAlorum, and McRae, and in light of the evidence heard on this trial, I cannot accept the Defendant's argument respecting the Qualified Technician's purported unreasonable reliance on the Analyst's certificate.

THE EVIDENCE

[9] For the most part, the Defendant does not contest the prosecution's evidence of what took place during this investigation.

[10] Constable Nicholas Lumsden testified about his interactions with the Defendant on 21 October 2017. The officer made a demand of the Defendant for a roadside breath screening. Once the breath screening was completed, the officer formed reasonable grounds to believe that the Defendant had been operating a motor vehicle with an impermissibly high BAC. The Defendant was arrested and an evidential breath demand was made for him to provide two suitable samples into an approved instrument. A Qualified Technician ("QT"), Constable Eric Passmore, received two suitable breath samples from the Defendant directly into the approved instrument and determined that the Defendant's BAC was 140 and 130 mg of alcohol in 100 ml of his blood, respectively. The QT relied upon a Certificate of an Analyst from the Centre of Forensic Sciences (Exhibit 3) to determine that the alcohol standard he analysed with the approved instrument was "suitable for use."

[11] The Defendant submits that the QT did not testify to what he understood was the alcohol standard target value, and if he did that was based on hearsay and there is no actual evidence to prove the concentration of alcohol for the alcohol standard used by the QT.

ANALYSIS

[12] The Defendant first argues that the Act to amend repeals s. 258(1)(c), leaving a gap in the prosecution's case. So, while there is evidence of the Defendant's BAC at the time of breath testing at the police station, there is no evidence of the Defendant's BAC at the time of the alleged offence.

[13] Secondly, the Defendant submits that the requirements of s. 320.31(1) of the Code have not been met, the presumption of accuracy does not apply, and the court cannot be satisfied beyond a reasonable doubt of the Defendant's BAC even if the presumption of identity operates in this case.

[14] I will respond to each argument in turn.

The Apparent Repeal of ss. 249-261 of the Criminal Code

[15] Section 14 of Part 2 the Act to Amend reads:

The heading before section 249 and sections 249 to 261 of the Act are repealed.

The Act to Amend received Royal Assent on 21 June 2018 and became effective on 18 December 2018.

[16] Despite the persuasiveness of the Shaikh decision, and for largely the same reasons of all of the other decisions to the contrary, I am now satisfied that the demise of the evidentiary shortcut found in s. 258(1)(c) has been greatly exaggerated, for at least three reasons.

[17] Firstly, Part 1 of the Act to Amend deals with all manner of amendments to ss. 253 - 259 of the Code.[4] It cannot be the case that Parliament intended to amend these sections in Part 1 only to have repealed them simultaneously and for all purposes in Part 2.

[18] Secondly, statutory construction follows a simple rule respecting prospective and retrospective application, generally:

…the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not (Sullivan on the Construction of Statutes - 5th ed. 2008 at p. 698).[5]

[19] This long-standing rule has been recognized by the Supreme Court in R. v. Ali:

It is not in dispute that the rule as to the retrospective operation of procedural statutes is not absolute; it is only a guide that is intended to assist in the determination of the true intent of Parliament which is the main objective of statutory construction. This presumption in favour of the retrospective operation of procedural enactments must therefore yield to the contrary intent of Parliament; a procedural statute shall not be construed retrospectively when Parliament has expressed its intention to the contrary (see Moon v. Durden [[1848] 2 Ex. 22], per Parke B., at pp. 42 and 43; Kimbray v. Draper [(1868), L.R. 3 Q.B. 160], per Blackburn J., as he then was, at pp. 162 and 163; Republic of Costa Rica v. Erlanger [[1876] 3 Ch. D. 62], per Mellish L.J. at p. 69; Gardner v. Lucas [[1878] 3 A.C. 582], per Lord Blackburn at p. 603.[6]

[20] The Supreme Court has reaffirmed the rule in R. v. Dineley:

There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).[7] [Emphasis is mine]

[21] I take these cases to mean that where new legislation concerns procedural law it is to apply retrospectively, unless Parliament has expressed its clear intention to avoid such result. Likewise, new substantive law can only apply prospectively because it would be unfair to require litigants to respond to charges that were not known at the time of offence, just as it is unfair to remove a substantive defence which has been repealed.[8]

[22] In Ali, at issue was the new legislative scheme that required the provision of two suitable breath samples into the approved instrument and transitional cases charged when the former legislation had only required one. The Supreme Court decided the issue on the basis that if the legislation was procedural, the rule of retrospective application was supplanted by a clear legislative intention. Had the Supreme Court considered the new legislation to have altered the law substantively (it clearly was by creating a new offence – the failure to provide two suitable breath samples rather than one), there is no question that the same result would have obtained.

[23] The court in Shaikh refers to the clear intention of Parliament which is found in the unambiguous wording of s. 14 of the Act to Amend: "sections 249 to 261 of the Act are repealed."[9] Respectfully, this is not the clear intention which is at issue.

[24] More clear than the repeal of the former offence (excess BAC at the time of driving) in favour of a new offence (excess BAC at the time of testing) is Parliament's explicit intention found within the "summary" of Part 2:

…among other things [the new provisions],

(a) re-enact and modernize offences and procedures relating to conveyances…

The "preamble" to the legislation also provides compelling evidence of Parliament's clear intention:

…it is important to simplify the law relating to the proof of blood alcohol concentration...

[25] Nowhere does the new legislation even mention the presumption of identity found within s. 258(1)(c), much less does it purport to repeal it for transitional cases. By contrast, s. 15 of the Act to Amend adds Part VIII.1 to the Criminal Code, which includes a revised presumption of accuracy and a mandate for its application. Section 32(1) of the Act to Amend reads:

Subsection 320.31(1) of the Criminal Code, as enacted by section 15 of this Act, applies to the trial of an accused that is commenced on or after the day on which that section 15 comes into force if the sample or samples to which the trial relates were taken before that day.

[26] Again, Parliament's intention of retrospectivity for the presumption of accuracy (a purely procedural provision) is clear. One would expect that if there were a legislative intention to repeal the presumption of identity retrospectively that would have been equally obvious in the new law.

[27] Given that the Act to Amend creates a new excess BAC offence it is substantive law that must be given prospective application. The repeal of section 258 of the Code (including the presumption found within s. 258(1)(c)) is also substantive legislation and consequently, it can only be given prospective application. This means that unless there is an expressed intention to the contrary (such as s. 15 of the Act to Amend as it applies to the presumption of accuracy found within s. 320.31 of the Code), the effects of the repeal of ss. 249-261 can only apply to charges laid after the new legislation took effect on 18 December 2018.

[28] Thirdly, s. 43 of the Interpretation Act, R.S.C. 1985, c. I-21 is a complete answer to this issue. This section of the Interpretation Act deals with the repeal of legislation and transitional cases:

43. Effect of repeal

Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, or liability, referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture or referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed. [Emphasis is mine]

[29] These subsections preserve the content of the now repealed parts of the Criminal Code for existing prosecutions under the former legislation. As it is beyond question that the former offence of excess BAC has survived the repeal of s. 258, it should be manifestly obvious that the evidentiary shortcuts found therein continue to exist for prosecutions of those charged under the old law.

[30] This interpretation is harmonious with a plain reading of Parts 1 and 2 of the Act to Amend, the rule of statutory construction for the retrospective application of procedural law, the clear language of the new legislation (and the lack of any amendments to s. 258(1)(c) in Part 1), the goal of the legislation (the simplification of proving excess blood alcohol offences), and a purposive and remedial reading of the new statutory regime.

The Flores-Vigil Argument

[31] The Defendant is incorrect that the QT did not state the target value for the alcohol standard. The following evidence was heard during the QT's evidence in chief at 12:54:25 on 02 May 2019:

Q. What's the purpose of the system calibration check?

A. So that's to ensure that the alcohol standard solution is what it says it is. It's a solution standard that's supposed to be measured within, at the reading of 100 mg of alcohol in 100 ml of blood, or the equivalent of that. When the instrument is conducting this system calibration check or calibration check, the alcohol standard solution is used to ensure that the system is calibrated within plus or minus 10 mg of alcohol in 100 ml of blood. So, the result of this check was 95 mg of alcohol in 100 ml of blood so I knew that the Intoxilyzer 8000C was in proper calibration in order to take a proper sample, or to provide a proper reading for a proper sample that's given.

Q. So, in terms of that solution, the target value is, you had said, what was the target value again?

A. The target value was 100 mg of alcohol in 100 ml of blood, plus or minus 10 mg of alcohol in 100 ml of blood.

[32] This is a factual issue. I find that this evidence was credible and reliable. In fact, it was not challenged during cross-examination or by other evidence. I accept this evidence, without hesitation.

[33] As an alternative argument it is posited that this evidence is inadmissible hearsay. I agree that the Certificate of Analyst does not state the target value of the alcohol standard. However, I have direct evidence from the QT and the Certificate of Analyst which attest that the alcohol standard was "suitable for use" in this approved instrument.

[34] Subsection 320.31(1)(a) provides that "the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration" if:

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.

[35] Counsel for the Defendant suggests that this subsection requires that the target value of an alcohol standard must be certified by an analyst. According to the Defendant, this subsection requires the analyst's certificate to certify that the alcohol standard is 100 mg of alcohol in 100 ml of solution.

[36] This is not how the subsection actually reads. Subsection 320.31(1)(a) merely requires that the alcohol standard must be certified. In the case at bar, the alcohol standard was certified by an analyst. No other issue has been raised respecting proof of the analyst's qualifications or the certification of the alcohol standard used in this case.

[37] On the basis of the evidence before the court, there is no reasonable doubt that the alcohol standard used by the QT was "certified by an analyst" as that phrase reads in the new legislation. I am satisfied beyond a reasonable doubt that the breath testing conducted by the QT was accurate and the results are reliable.

CONCLUSION

[38] I am satisfied beyond a reasonable doubt that s. 258(1)(c) of the Code has prevailed beyond its repeal by the Act to Amend, for transitional cases such as this one.

[39] I am also satisfied beyond a reasonable doubt that the Defendant's BAC at the time of the offence has been proven to be over 80 mgs of alcohol in 100 ml of his blood.

[40] Accordingly, Jashandeep Bhandal is guilty as charged.

Released: 21 May 2019

Justice G. Paul Renwick

Footnotes

[1] See Part 2 of An Act to amend the Criminal Code (offences relating to conveyances), and to make consequential amendments to other Acts, S.C. 2018, c. 21 ("An Act to Amend"). The Act to Amend was assented to on 21 June 2018 and proclaimed in force on 18 December 2018.

[2] The presumption of identity found within the now repealed s. 258(1)(c) was an evidentiary shortcut that permitted the prosecution to prove the Defendant's BAC at the time the offence was committed without the necessity to hear from an expert (toxicologist) to estimate the BAC based on the analyses of breath made by the approved instrument well after the alleged offence.

[3] Jagernauth, supra.

[4] Subsections 7(1), 7(2), 7(3), and 7(4) of the Act to Amend deal with amendments to s. 258(1). Conspicuously absent from any amendment is the presumption of identity found within s. 258(1)(c).

[5] Shaikh, supra, at p. 35.

[6] R. v. Ali, [1979] S.C.J. No. 105 at p. 11.

[7] R. v. Dineley, 2012 SCC 58, [2012] S.C.J. No. 58 at para. 10.

[8] Ibid.

[9] Shaikh, supra, at para. 22.