Court File and Parties

Ontario Court of Justice

Date: 2019-05-30

Court File No.: BRAMPTON 17-14672

Between:

Her Majesty the Queen

— and —

Mandip Brar

Before: Justice I. Jaffe

Heard on: April 16 and 17, 2019

Reasons for Judgment released on: May 30, 2019

Counsel

C. Agatiello — counsel for the Crown

L. Beechener — counsel for the accused Mandip Brar

Judgment

JAFFE J.:

Facts and Circumstances

[1] On November 29, 2017, Mandip Brar was stopped at a static spot check being conducted as part of the Peel Regional Police Service's Festive RIDE program. The combination of some classic indicia of alcohol consumption and a failed ASD test led to Mr. Brar's arrest on an over 80 charge and a s.254(3) demand that he provide a sample of his breath for analysis.

[2] Mr. Brar was transported to 21 Division where, 54 minutes after his initial arrest, he provided a suitable sample of breath. A second sample was provided 22 minutes later. The results of both breath samples revealed a BAC in excess of the legal limit.

[3] Mr. Brar's previously filed Charter application by which he sought to exclude the breath readings was withdrawn at the start of the trial and he instead advanced three arguments in defence of the charge. Mr. Brar argues the Crown's failure to establish the statutory pre-conditions to the presumption of accuracy in s. 320.31(1) of the "new" legislation fatally dooms the Crown's case.

[4] Mr. Brar further argues that the Crown is unable to rely on the statutory presumption of identity to establish his BAC at the time of driving because the presumption, formerly embodied in s. 258(1)(c) of the Criminal Code, was expressly repealed on December 18, 2018 with the introduction of the new drinking and driving legislation. And, lastly, Mr. Brar argues that even if I find the presumption remains in place for transitional cases, the Crown cannot avail itself of the presumption because it has failed to establish that his breath test was conducted "as soon as practicable" as was required by s.258(1)(c)(i).

Summary of the Evidence

[5] This was a short two-witness trial involving the evidence of the arresting officer and the qualified breath technician, both officers with the PRPS. P.C. Micallef was one of several officers involved in the static RIDE check point at Kennedy and Clarence Streets in Brampton. Shortly before 1:30 a.m., P.C. Micallef stopped Mr. Brar's vehicle and spoke to Mr. Brar through his open driver's side window. As per her routine, the officer asked Mr. Brar when he had his last drink to which Mr. Brar replied "no." Thinking this was an odd answer which was not responsive to her question, P.C. Micallef asked it again and Mr. Brar replied that he had his last drink 4 hours ago. At this point, P.C. Micallef detected the odour of alcohol emanating from the car, though she acknowledged that Mr. Brar's passenger appeared to be very intoxicated. Noticing Mr. Brar's eyes were a "little watery" and in light of the odour of alcohol and Mr. Brar's answer to her questions she asked him to step out of the car for the purpose of conducting a roadside screening test.

[6] Due to the cold weather, Mr. Brar was placed in the rear seat of P.C. Micallef's cruiser at which point, with the benefit of the interior car light, the officer also noticed Mr. Brar's red eyes. Mr. Brar's breath sample registered a "fail" on the ASD and at 1:30 a.m., P.C. Micallef placed him under arrest for driving with excess alcohol in his system. A police caution and breath demand followed.

[7] P.C. Micallef testified that through dispatch she made a request for a breath technician and proceeded to 21 Division which was very close to the RIDE spot check. The officer and Mr. Brar left the scene at approximately 1:40 a.m. and arrived at 21 Division six minutes later. At his request, Mr. Brar was put in contact with duty counsel at 1:50 a.m. and finished his conversation with counsel at 1:56 a.m. While P.C. Micallef recalled that she turned over custody of Mr. Brar to the breath technician shortly after he finished his call with duty counsel, this turned out to be incorrect.

[8] P.C. Scarchilli testified that custody of Mr. Brar was turned over to him by P.C. Micallef at 2:19 a.m., approximately 23 minutes after Mr. Brar had completed his call with duty counsel. As explained by P.C. Scarchilli, he had been situated at 22 Division when he received the call that his services as a breath technician were required. P.C. Scarchilli requested that the detainee be brought to 22 Division, however, there was a "mix-up" and P.C. Micallef was sent to 21 Division instead. P.C. Scarchilli testified that as soon as he realized the mistake, he packed up and drove to 21 Division arriving at 2:09 a.m. When he arrived at 21 Division, P.C. Micallef and Mr. Brar were seated in the booking area of the cells.

[9] Mr. Brar entered the breath room at 2:19 a.m. and after P.C. Scarchilli performed a series of tests on the Intoxilyzer 8000C, it was ready to receive a sample at 2:24 a.m. At 2:24 a.m., Mr. Brar supplied his first suitable sample which revealed a truncated BAC of 140 milligrams of alcohol in 100 millilitres of blood. A second breath sample provided at 2:46 a.m. revealed a truncated BAC of 120.

The Presumption of Accuracy

[10] Unlike the former presumption of identity in s. 258(1)(c) of the Criminal Code, Bill C-46 expressly provides that the new presumption of accuracy in s. 320.31(1) applies to transitional cases such as the one before me. In short, the breath results are presumed to accurately prove an accused's BAC provided the Crown has established the statutory preconditions in s. 320.31(1) which reads as follows:

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.

Evidence of the Breath Technician

[11] In summary, s. 320.31(1)(a) requires the Crown to prove that the breath technician conduct two tests prior to administering the breath test: the system blank test and the calibration check. P.C. Scarchilli testified that he performed both tests and explained that they are both expressly referred to in the new Criminal Code section. In addition to those two tests, P.C. Scarchilli conducted a diagnostic test. The Intoxilyzer instrument passed all three tests and computer print-outs of the results of all three tests were entered as exhibits.

[12] Also entered into evidence was the certificate of a qualified breath technician which in addition to reflecting Mr. Brar's breath test results, also certifies the following:

"That each of the said samples was received directly in an Intoxilyzer 8000C an approved instrument as defined in subsection 254(1) of the Criminal Code of Canada operated by me; That an analysis was made of each of the samples by means of the said instrument which was operated by me and which I ascertained to be in proper working order by means of an alcohol standard that was suitable for use with the said instrument and identified as Laboratoire Atlas In."

Arguments and Analysis

[13] On behalf of Mr. Brar, Mr. Beechener focused his complaint on subsection 320.31(1)(a), specifically the systems calibration check, and argues that the Crown's compliance with that subsection is deficient in two ways. First, he argues that while the breath technician mentioned a "target value" of "100" in his evidence he did not specify that it was a target value of "an alcohol standard." However when considered in context and having regard to the officer's express reference to the s.320.31(1)(a), I have no doubt that P.C. Scarchilli's reference to the "target value of 100" was in reference to an alcohol standard.

[14] The second argument has more force. Specifically, Mr. Beechener argues that the breath technician did not address whether the alcohol standard was "certified by an analyst." In support of this argument, Mr. Beechener relies on R. v. Flores-Vigil, 2019 ONCJ 192 in which the trial judge found that the Crown was disentitled to the presumption of accuracy because it had failed to prove the concentration of the alcohol standard used in the approved instrument, and failed to prove that the alcohol standard was certified by an analyst.

[15] On April 9, 2019 in R. v. Does, [2019] O.J. No. 1924, De Filippis J. came to the opposite conclusion. Not surprisingly, the Crown is urging me to adopt De Filippis J.'s approach and find that P.C. Scarchilli's evidence, combined with his certificate of a qualified breath technician, satisfies the preconditions to the presumption.

[16] In Does, as in the case before me, the Crown filed the Certificate of a Qualified Breath Technician that certified the standard solution was "suitable for use" in the instrument. However, unlike P.C. Scarchilli, the breath technician in Does also testified that he had viewed the Certificate of an Analyst and was satisfied that the approved instrument contained a solution that had been "certified as suitable for use by the Centre of Forensic Science." De Filippis J. held the presumption of accuracy does not depend on the Crown filing the actual Certificate of an Analyst but could be proven through the viva voce evidence of the breath technician.

[17] I agree with approach taken by De Filippis J. in Does. I am also of the view that as with any fact, the requirement that the alcohol standard was certified by an analyst can be proven through direct or circumstantial evidence. In the absence of direct evidence that the solution used by P.C. Scarchilli was "certified by an analyst," the question is whether, based on the evidence before me, I can infer it was properly certified?

[18] P.C. Scarchilli is an experienced breath technician and he displayed an understanding of the content and requirements in s. 320.31(1)(a). Through his Certificate of a Qualified Breath Technician, the officer certified that the alcohol standard was "suitable for use in the instrument." My intuition tells me that the alcohol standard was suitable for use precisely because it was certified by an analyst, however the officer did not expressly make that connection.

[19] In cases prosecuted before the December 2018 amendments, a filing of certificate of the Qualified Breath Technician satisfied the statutory pre-conditions to the presumption of accuracy. Now, something more is required either in the form of the Certificate of the Analyst or viva voce evidence concerning the analyst's certification of the alcohol standard. That "something more" was present in the case before De Filippis J. in Does, as it was before Kenkel J. in R. v. McRae, [2019] O.J. No. 2493 and Rose J. in R. v. Porchetta, [2019] O.J. No. 1985. In other words, in those cases there was evidence that the breath technician viewed the certificate of analyst and there was some evidence the solution was certified. I do not have that evidence before me.

[20] Accordingly, a precondition to the operation of the presumption of accuracy has not been proven. Though my conclusion regarding the presumption of accuracy is dispositive of the case, I will nonetheless briefly set out my response to the other two defence arguments.

The Presumption of Identity

[21] The December 18, 2018 repeal of the "old" drinking and driving legislation, has spawned a multitude of rulings from this court concerning the continued operation of the s. 258(1)(c) "presumption of identity" in transitional cases. Unlike the former presumption of accuracy which had been replaced by a differently worded presumption in s. 320.31(1), the old presumption of identity has been effectively incorporated into the new "over 80" offence accordingly there is no longer a need for a stand-alone presumption. While the statutory presumption of identity has become unnecessary, and unavailable, in proof of new offences, what if anything can the Crown do in proof of transitional cases?

[22] On March 26, 2019, in R. v. Singh, 2019 ONCJ 157, Burstein J. held that the presumption of identity in s. 258(1)(c) was repealed when the previous drinking and driving provisions were overhauled and replaced with brand new Criminal Code provisions. On April 11, 2019, Renwick J. came to the same conclusion in R. v. Jagernauth, 2019.

[23] In very simple terms, the conclusions in Singh and Jagernauth, turned primarily on what appears to be the unambiguous repeal of sections 249 to 261 of the Code (which necessarily includes the s. 258(1)(c) presumption of identity), combined with Parliament's express declaration that the new presumption of accuracy in s. 320.31(1) applies to all new and transitional prosecutions. The effect of these changes does not defeat the prosecution of transitional drinking and driving cases and the added requirement on the Crown to tender toxicological evidence in place of the retired presumption does not justify an end-run around Parliament's clear intentions. On behalf of Mr. Brar, Mr. Breechner urges me to come to the same conclusion.

[24] However, on the heels of the Singh and Jagernauth decisions, a number of other decisions from this court have come to the opposite conclusion holding that the presumption of identity remains available in proof of "over 80" charges which were laid prior the legislative overhaul: See for instance R. v. Sivalingam, [2019] O.J. No. 1975, R. v. Porchetta, [2019] O.J. No. 1955; R. v. McAlorum, 2019 ONCJ 259; R. v. Fram, [2019] O.J. No. 2276; R. v. Hiltschuk, [2019] O.J. No. 1015; R. v. McRae, 2019 ONCJ 310; R. v. St-Louis Laberge, 2019 QCCM 54.

[25] The conclusions in those decisions were driven by Parliament's clear intention in these recent amendments to further simplify the manner of proof in "over 80" charges. I say "further simplify," because the December amendments are just the most recent step in a long history of legislative change, the end-goal of which has been to simplify and streamline drinking and driving prosecutions.

[26] While the unavailability of the s. 258 presumption of identity does not render the prosecution of transitional "over 80" cases impossible, there can be no denying their prosecution would be rendered more complex and time-consuming, results which are in clear conflict with Parliament's express goal. Though none of the cases recently emerging from this court are binding on me, I am most persuaded by the line of reasoning which finds that the presumption remains available in proof of "over 80" charges laid prior to the December amendments. I likewise conclude that the s. 258(1)(c) presumption of identity remained available in proof of Mr. Brar's "over 80" charge.

As Soon as Practicable

[27] In order to rely on the presumption of identity set out in s. 258(1)(c)(ii) of the Criminal Code, the Crown must establish that the breath samples were taken "as soon as practicable" after the offence was alleged to have been committed. This requirement has been judicially interpreted as requiring the police to take the breath samples "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, 2006 C.C.C. (3d) 489 (Ont. C.A.), at para. 12. The focus of the inquiry should be whether, in the circumstances, the police acted reasonably: Vanderbruggen, at para. 12.

[28] Mr. Brar further argues that there has been no satisfactory explanation for the mix-up which resulted in Mr. Brar being taken to 21 Division while the breath technician waited at 22 Division. It was argued that had the mix-up not occurred, Mr. Brar would have been able to provide his first sample shortly after his conversation with duty counsel. As it turned out, his breath test was delayed as a result of the mix-up. There was no evidence as to when the breath technician learned of the error, or why the error occurred in the first place.

[29] The requirement in s. 258(1)(c)(ii) of the Code that the sample be taken as soon as practicable must be proven by the Crown beyond a reasonable doubt and the absence of evidence justifying the delay in this case should lead me to conclude that it has not been proven.

[30] Deciding whether the breath samples were taken "as soon as practicable" requires an examination of the entire chain of events though the Crown is not obligated to fill every evidentiary gap in the timeline: Vanderbruggen, at para. 13.

[31] In R. v. Singh, 2014 ONCA 293, at para. 14, Juriansz J.A., urged trial courts to apply the "as soon as practicable" requirement with reason. Juriansz J.A. reminded us that the statutory presumption was enacted to expedite the trial process and its application should not depend on an exact accounting of the chronology from offence to the breath tests: Singh, at para. 15.

[32] Counsel for Mr. Brar directed my attention to R. v. Schouten, [2002] O.J. No. 4777 (S.C.J.), a 2002 decision of Durno J. in which he allowed an appeal against conviction in a case where there was no explanation given for an 18-minute delay after the breath technician said he was ready to administer the breath test. That is not the case here. The delay in this case was the result of miscommunication to the arresting officer who believed the breath test was to be conducted at 21 Division. Both the arresting officer and the breath technician were diligent in executing their duties and, notwithstanding the mix-up, Mr. Brar's first breath sample was provided less than an hour after his roadside arrest.

[33] Considering as I must the entire chain of events, and bearing in mind the two hour period permitted in s. 258(1)(c)(ii) of the Criminal Code, I find that the samples were taken "as soon as practicable," thereby allowing the Crown to rely on the statutory presumption of identity.

Conclusion

[34] By having failed to address the prerequisites of the new s. 320.31(1)(a), the Crown cannot avail itself of the presumption of accuracy. During a transitional period in which all participants in the justice system adapt to legislative change, results such as this are bound to occur. I find Mr. Brar not guilty.

Released: May 30, 2019

Signed: Justice I. Jaffe