Court Information

Ontario Court of Justice Central West Region - Brampton, Ontario

Date: May 29, 2019 Court File No.: 17-14625

Parties

Between: Her Majesty the Queen

— And —

Jonathan Yip Chuck

Judicial Officer and Counsel

Before: Justice B Duncan

Heard on: May 1, 2019

Reasons for Judgment released on: May 29, 2019

Counsel:

• C Agatiello – counsel for the Crown
• B Daley – counsel for the accused

Judgment

B Duncan J.:

The Charge

[1] The defendant is charged with exceed 80, offence date November 25, 2017.

[2] This is a transitional case, that is, the alleged offence occurred before the coming into force of the recent amendments to the drinking and driving laws while the trial occurred after that date, December 18, 2018.

[3] Mr. Daley with his customary candour and efficiency has narrowed his case to two points, both triggered by the advent of the new legislation.

The Shaikh Point

[4] This argument contends that the new legislation and its provisions addressing transitional cases fail to provide for the continuing applicability of the presumption of identity for such cases. Without it, the argument goes, the Crown must link blood alcohol test results back to the time of driving by the evidence of an expert toxicologist.

[5] Since the Shaikh decision a number of judges of our court have considered the issue. There is no agreement on the point. With all due respect to the pro-Shaikh view, I believe that the contrary view is the correct one. I would adopt in particular the reasoning and conclusion of Latimer J. in R v. McAlorum, 2019 ONCJ 259 and can add little to his analysis.

[6] Except this.

[7] The failure to specify the continuance of the presumption of identity can be accounted for as:

• an expression of Parliament's actual intention to have the presumption cease immediately and not apply to transitional cases; or
• a considered Parliamentary assessment that no specific transitional provision was necessary; or
• a mistake or oversight by the draftsman and lawmakers.

[8] With respect to the first option, it should be kept in mind that the presumption of identity has been part of Canada's breathalyzer law since it was first enacted in the 1960's – over 50 years ago. The presumption has been an integral part of that scheme – necessary to connect the test readings back to the time of driving. It is unimaginable that, after fifty years, Parliament would intentionally decide to repeal and discontinue that presumption for the last few months for which it would be required.

[9] With respect to the second possibility, the law fully supports the view that, unless a contrary intention appears, transitional cases are to be continued as if nothing had changed. The former law continues to apply unless there is specific provision to the contrary. The fact that the new legislation provides for immediate and retrospective application of the new presumption of accuracy cannot be construed in any way as a contrary intention ousting what otherwise would be the survival of the presumption of identity for transitional cases.

[10] With respect to the third option – mistake: Even if the new enactment's silence on the continued applicability of the presumption of identity was an oversight, it is saved by the law as per the second option above. It was not necessary to make provision for the presumption of identity in transitional cases since silence, either intentional or unintentional, is sufficient to ensure its survival.

The Flores-Vigil Point

[11] For reasons that are not obvious to me, the new legislation specifically provides that the new presumption of accuracy applies in transitional cases. This requires the Crown to prove the new requirements including that each subject test was preceded by a calibration check against a standard alcohol solution. This check has long been part of the operating procedure in breath testing in Canada, though the new legislation has given it new legal significance as being a necessary element of proof in order to give rise to the presumption of accuracy.

[12] In Flores-Vigil the Court held that the Crown must prove that the solution was one tested and certified by an analyst but also that the solution so certified contains an identified concentration of alcohol that should produce a certain target result when introduced into the Intoxilyzer – if that machine is working properly. In this case, unlike Flores-Vigil, an analyst's certificate was presented in evidence certifying that the solution was suitable for use in the Intoxilyzer. It did not, however, reveal the concentration of alcohol in that solution.

[13] I agree with Justice Parry in Flores-Vigil that the word "calibrate" means to test or adjust a tool or instrument against a known standard. Accordingly, a calibration check that yields a certain result is meaningless unless the value of the standard is known.

[14] However, there is more than one way that a fact can be "known". It could be set out in the analyst's certificate itself – and I understand that the new analyst's certificates put in use after December 18, 2018 include a statement regarding the concentration. Or it could be "known" as part of the qualified technician's training. Such is the case here. His training taught him that the standard alcohol solutions certified by the CFS for Ontario always contain a concentration that produces a target value of 100 plus or minus 10. A calibration check that produces a reading of 99, as in this case, is therefore a meaningful check of the machine's accuracy.

[15] It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. I suspect that only a small percentage of what one "knows" is gained from firsthand experience or personal verification. At some point any hearsay concern dissipates and a witness may testify as to learned knowledge.

[16] In this exact context courts have permitted qualified technicians to testify over hearsay objections as to the suitability of solutions used in breath testing machines: see R v. Porchetta, [2019] O.J. No. 1985 and authorities cited therein particularly R v. Ware (1975), 30 C.R.N.S. 308 (Ont. C.A.) and R v. Harding (1994), 17 O.R. (3d) 462 (C.A.). See also R v. Lightfoot, [1981] 1 SCR 566.

[17] In the same way, in my opinion, the technician may testify as to what he has learned about the alcohol concentration and target values of the solutions that are used: R v. Does, [2019] O.J. No. 1924. That evidence was given by the technician in this case and established what was required to give rise to the presumption of accuracy.

Conclusion

[18] The arguments are rejected. The case has been proven. The defendant is found guilty as charged.

Released: May 29, 2019

Justice B Duncan

Footnotes

[1] 2019 ONCJ 157

[2] Some cases that follow Shaikh: R v. Jagernauth, 2019 ONCJ 231 - Renwick J; R v. Melhado, [2019] O.J. 1993 - S. Brown J. Contra: R v. Sivalingham, 2019 ONCJ 239 - Schwarzl J; R v. Porchetta, 2019 ONCJ 244 - Rose J; R v. McAlorum, 2019 ONCJ 259 - Latimer J; R v. Etcheverria (unreported) - Brown J.

[3] Practically necessary. Without it, an expert would have to be dispatched to every over 80 trial occurring in every court on every day in the entire country.

[4] The Interpretation Act, s. 43; R v. Ali, [1980] 1 SCR 221; R v. Copley (1988), 43 CCC 3d 396 (Ont. C.A.).

[5] 2019 ONCJ 1921