Court File and Parties

Ontario Court of Justice

Date: 2019-06-14

Court File No.: Ottawa 18-A11585

Between:

Her Majesty the Queen

— and —

Jacob Ranger

Before: Justice Julie I. Bourgeois

Reasons for Judgment

Counsel:

• D. Rodgers, counsel for the Crown
• B. Engel, counsel for the defendant

BOURGEOIS J.:

Charge and Application

[1] Mr. Jacob Ranger is charged that on June 24, 2018, he consumed alcohol in such a quantity that his blood alcohol concentration (BAC) exceeded the legal limit and operated his motor vehicle contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] He brought an application arguing that his Charter protected rights under section 10(a) and (b) were infringed and as such, the evidence obtained in breach of section 8 and 9 of the Charter ought to be excluded pursuant to section 24(2) of the Charter. On consent, the Charter application proceeded by way of a blended voir dire within the trial proper. In addition to the Charter application, it is argued, at the trial proper, that the presumption of identity, as it existed pursuant to the former section 258 of the Criminal Code is no longer available as an evidentiary shortcut to the Crown under the new regime. As such, counsel for Mr. Ranger argues that, not having heard evidence from a toxicologist, Mr. Ranger's breath sample analysis ought not to be considered as evidence of the over 80mg of alcohol in 100ml of blood element of the offence.

[3] Cst. Bashford testified as the only witness in this case. Certificates of a qualified technician were filed as Exhibit 1 and 2 – Exhibit 2 was originally prepared pursuant to section 258(1)(g); and Exhibit 1 pursuant to section 320.32 of the Criminal Code.

Section 10(a) Argument

[4] In relation to the section 10(a) argument – it is the Defendant's position that the officer did not inform Mr. Ranger when the Highway Traffic Act (HTA) investigation morphed into a Criminal Code investigation. The defendant argues that it would have been very easy and simple for the officer to advise Mr. Ranger that as a result of the change in the nature of the investigation, that is from an HTA to a Criminal Code investigation, he did not have to answer any of his questions and of course he had a right to retain and instruct counsel immediately. It is argued that short of this constitutes a breach of section 10(a) and (b) and any evidence seized as a result of the observations and the illegal detention is a breach of section 8 and 9 of the Charter. Crown counsel, on the other hand, takes the position that clear questions from the officer as to where Mr. Ranger was coming from and how much he had to drink was enough to convey to Mr. Ranger that this was now an investigation into a Criminal Code matter.

[5] As in any other matter, the factual context is important when considering any legal and constitutional issue.

Factual Background

[6] There is no doubt the interception of Mr. Ranger's motor vehicle was pursuant to an HTA investigation. Indeed, the officer noticed that Mr. Ranger had no rear lights turned on his motor vehicle – this was at a time of night the lights ought to have been on – his first observation of the motor vehicle was at 2:40am. When the officer first observed the motor vehicle it was stationary on the shoulder of the street and a female was walking away from it. Given the location and time of night, the officer presumed the female was a sex trade worker. It is when the vehicle pulled away without the rear lights on that he followed it with the intention of intercepting it pursuant to the HTA. He conducted a CPIC search and found out the name and date of birth of the registered owner. He conducted the stop shortly thereafter.

[7] He informed Mr. Ranger, the sole occupant, driver and registered owner of the motor vehicle, the reason for the stop was related to the HTA – no lights on. He asked Mr. Ranger for the usual documentation. The officer explained that he asked for the documentation as he wanted to identify the driver and was planning on issuing him a citation for the HTA violation.

[8] As Mr. Ranger was looking for the said documents, the officer asked him where he was coming from and where was the lady coming from. He explained to defence counsel that he was asking those question simply out of curiosity and to make conversation as he agreed it was irrelevant to his HTA investigation. He also agreed that he had no reason to doubt the answers he was provided with: Mr. Ranger was coming from the NuDen on Triole Street in Ottawa, an adult entertainment licensed establishment, and the lady was not with him nor had she been in his car but simply to his and walked away from it.

[9] The officer explained that Mr. Ranger at this point seemed to have trouble with dividing his attention to more than one task – that is answering the officer's questions and looking for the documentation at the same time. As a result of this conversation however, he detected an odour of alcohol on Mr. Ranger's breath. He used his flashlight to illuminate Mr. Ranger's eyes and observed that they were bloodshot, meaning red and glossy. It is at this junction that he asked Mr. Ranger about his alcohol consumption. Mr. Ranger admitted consuming two or three beers.

[10] Cst. Bashford then, in examination in chief, articulated that at this time he formed reasonable suspicion of alcohol in the body of Mr. Ranger and read the ASD demand at 2:43am. He indicated that after he read the demand and satisfying himself that Mr. Ranger understood it, he instructed him to exit his car and come to his cruiser.

[11] In cross-examination, however, Cst. Bashford testified that he did not know that his HTA investigation had morphed into a Criminal Code offence yet because he did not know the BAC in Mr. Ranger's system until he actually obtained an "F", a fail result on the approved screening device (ASD). He explained that he could have still provided a sample that resulted in an alert range which would have been an HTA matter and not a Criminal Code matter. When asked to confirm whether, when asking questions about alcohol consumption, he did not think this was related to a Criminal Code charge, the officer did not dispute that it could very well be. He was asked, when he made the ASD demand, whether this was not beyond the HTA's investigation or scope. He answered that the HTA still has related provisions and he only had reasonable suspicion prior to the fail result on the ASD. He ultimately agreed that at one point, his HTA investigation morphed into a Criminal Code investigation. He agreed that he did not advise Mr. Ranger at that point, whenever that was, but he did so when he placed him under arrest, following the result on the ASD.

[12] The officer explained that an F result on the device means the subject has over 100mg of alcohol in 100ml of blood in his system. He arrested him at 2:47am. He does not believe he used the word "alcohol" at this stage but would have said something along the lines of "I am arresting you for over 80".

Section 10(b) Argument

[13] Now in relation to the 10(b) issue – defence argues that Mr. Ranger was not informed of his rights to counsel (RTC) immediately upon detention nor immediately upon arrest. Counsel argues, in connection with the section 10(a) argument, that if Cst. Bashford would have informed Mr. Ranger that the investigation was no longer pursuant to the HTA but rather the Criminal Code, and informed him of his RTC, Mr. Ranger might not have answered his question and allow the officer to gather evidence against him in the Criminal Code investigation. It is also and perhaps mainly argued that the officer did not inform Mr. Ranger of his RTC immediately upon arrest following the result on the ASD.

[14] As described earlier, Cst. Bashford testified that after obtaining the fail on the ASD he placed Mr. Ranger under arrest at 2:47am. He handcuffed him and searched him. He then informed his communication center, through his two-way radio, of the arrest and that he required an officer to assist in impounding Mr. Ranger's motor vehicle and that he will need a qualified technician at the station. In-chief, he testified that he did this to be able to leave for the detachment quickly so as not to detain Mr. Ranger too long. As such, he needed another officer to assist him in removing Mr. Ranger's motor vehicle from the scene.

[15] After the exchange with the communication center, he placed Mr. Ranger in the back of his police cruiser and at 2:50am he read him the RTC from the force provided card. He read the force provided card while on the stand as to what he would have read to Mr. Ranger that evening. He agreed it took approximately 20 to 30 seconds to do so. In reading the card, the wording used at this stage would have started with: "I am arresting you for operating your motor vehicle with a blood alcohol concentration of over 80." Mr. Ranger's reaction to this was confusion. He asked the officer on which street he had caught him driving over the speed limit. Cst. Bashford explained to Mr. Ranger it was driving with more than 80mg of alcohol in his blood. Mr. Ranger then appeared to understand this was not an over 80km/hr HTA offence but rather an over 80mg of alcohol/100ml of blood Criminal Code offence.

[16] Cst. Bashford testified that he understands his duty to provide the RTC immediately but that it is not always practical. He explained that he understood it would have been preferable, following the arrest of Mr. Ranger, to have then provided him with his RTC and therefore read all of that information at the same time, but he did not have his duty book out to read it verbatim and as a result he could not have told counsel in court what he would have said to Mr. Ranger. As such, as preferable as it may be, he said, it is not very practical. When asked if it was preferable to call the communication center at this point, he admitted that it was not his preference, but it was just practical to do so.

[17] The officer left the scene at 2:55 and arrived at the detachment at 3:02am. He had to wait in the sally port for his turn to enter cell block and agreed with counsel that the wait period was 12 minutes. He also agreed that he did not have any notes about whether he notified Mr. Ranger during that 12 minute wait about why they were waiting. He seemed to agree with the suggestion that all that took place during that 12 minute period was filling the booking sheet and waiting for their turn to enter the cell block.

Analysis

Section 10(a) Analysis

[18] In relation to the section 10(a) issue - in this case, the officer promptly advised Mr. Ranger of the initial reason for his detention and the interception of his motor vehicle: it was in relation to lights not being turned on, contrary to the HTA. However, the officer asked unrelated questions to Mr. Ranger which led him to reasonably suspect Mr. Ranger had alcohol in his body while operating his car. The applicant argues that the officer ought to have informed him that the questions he was about to ask him were now in relation to a Criminal Code investigation and not related to the HTA matter. It is the applicant's position that he should have informed him promptly, according to section 10(a) of the Charter, that the reason for his investigative detention at this point was related to a Criminal Code matter of drinking and driving.

[19] The Crown refers to our Court of Appeal's decision in R. v. Gonzales, 2017 ONCA 543. Some of the governing principles applicable in this case are summarized in paragraphs 122 through to 125:

122 Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries — those arrested or detained — but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed — "the reasons" for the arrest or detention. At a minimum, section 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.

123 A functional equivalent of the term "promptly" in section 10(a) is the phrase "without delay", which appears in section 10(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 41.

124 The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by section 10(a). And that is its role as an adjunct to the right to counsel conferred by section 10(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-887.

125 To determine whether a breach of section 10(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under section 10(b): Evans, at p. 888.

[20] I do not read any of the case law in relation to section 10(a) to impose a duty on the police to specifically advise a detainee of a change in the nature of the investigation in the manner proposed by defence counsel. There is no positive duty on the police to advise a detainee at the roadside, that he does not have to answer questions in relation to where he is coming from or whether he consumed alcohol. This is because the RTC at the roadside under these circumstances are suspended, in the name of public safety on the roadway, but in exchange for a limited use of the answers to support or refute suspicions related to drinking and driving (See Orbanski and Elias, 2005 SCC 37). What the Supreme Court of Canada (SCC) in Evans in 1991 and our Court of Appeal for Ontario in Gonzales in 2017 have explained however, is that section 10(a) imposes a duty on the police to inform promptly of the reasons for one's arrest or detention. To determine if that constitutional duty was complied with we are to look at "the substance of what an accused can reasonably be supposed to have understood, (…). The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision". (see above from Gonzales para. 124-125).

[21] The factual background in this case is common enough. Mr. Ranger is pulled over in relation to an HTA infraction but in the course of the interaction with the police, the officer develops a suspicion in relation to a Criminal Code offence. This is almost an exact replica of the situation in R. v. Borer, 2015 ONSC 4592. The case law is also clear that under those circumstances, the simple and clear question about alcohol consumption will usually make it clear to the driver that he or she is in jeopardy of a drinking and driving Criminal Code matter and as such the requirement pursuant to section 10(a) of the Charter will be met. Again, no formalistic or precise words are required to convey the substance of the reason at that point for the detention.

[22] An officer is also entitled, in that context, to make observations of the detained driver and to ask alcohol consumption related questions (again see Orbanski, paras. 45-51). The observations the officer made of the odour of alcohol and of the bloodshot eyes, coupled with a difficulty to divide his attention in conversing with the officer and retrieving his documentation and the admission of consumption of beer, are all part of the reasonable suspicions the officer formed in making the ASD demand.

[23] The only distinctions in this case from the situation in Borer, supra, are the fact that Mr. Ranger clearly did not understand what the expression "over 80" meant in this context when the officer read him his RTC. However, he clearly understood the question as to his alcohol consumption as he answered he had two or three beer earlier and he clearly understood the ASD demand. This minor factual distinction would not bring any change to the legal analysis required under section 10(a) of the Charter.

[24] The other distinction is the officer's evidence in cross-examination. It certainly appeared from his answers to defence counsel that he was resisting the suggestion that the HTA investigation had morphed into a Criminal Code investigation – in fact as early as when he asked Mr. Ranger where he was coming from. Cst. Bashford kept reverting to the HTA options or available investigative tools and its consequences, for example a result short of a fail on the ASD. This was certainly not something that seemed to have crossed his mind when he testified in chief. Cst. Bashford certainly seemed to have a strong understanding of the legal requirement pursuant to section 254(2) of the Criminal Code to make an ASD demand. He articulated it very well. However, for a reason that I am unable to determine, he seemed to not want to admit, acknowledge or recognize that he had embarked upon a Criminal Code investigation in relation to drinking and driving at least when he asked Mr. Ranger about his alcohol consumption. It is unclear to me if he was under the impression this area was problematic because he did not advise Mr. Ranger that he was now investigating a Criminal Code matter or if it is simply because he felt he only obtained the confirmation of a Criminal Code offence after receiving the breath result on the ASD.

[25] This state of the officer's evidence certainly gives cause for pause. But as correctly pointed out by Crown counsel during submissions, the officer was clearly wrong in cross-examination. This portion of the officer's evidence however cannot be sufficient to detract from the correct analysis of the 10(a) issue. Crown counsel is also correct in pointing to R. v. Borer, supra, as a binding authority on this issue.

[26] After reviewing the evidence and the binding case law on this first issue, I conclude that Mr. Ranger's section 10(a) Charter protected right was not breached.

Section 10(b) Analysis

[27] Now turning to the second issue – the 10(b) right to be informed of his right to counsel. On this issue, the officer's evidence clearly demonstrates a breach. Contrary to many police officers, even jurists sometimes, Cst. Bashford clearly understood that his obligation to inform Mr. Ranger of his RTC was immediately upon arrest in this case. Not as soon as practicable or possible or somewhere between, but immediately. However, his explanation as to why he did not comply with his constitutional duty was two-fold:

1. Because it was not practical given he did not have his duty book out and wanted to read it verbatim to ensure he could specifically testify in court about it;

2. Because he did not want Mr. Ranger to be detained too long and as such immediately asked his communication center for assistance in removing Mr. Ranger's car from the side of the street and transporting him to the detachment to be tested by a qualified technician. Indeed, Cst. Bashford read Mr. Ranger a caution at 2:52am and they left for the detachment at 2:55am.

[28] Ultimately, the delay in providing Mr. Ranger with his RTC is one of three minutes. However, during these three minutes, some time was spent cuffing and briefly searching Mr. Ranger. As stated by our SCC in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 42:

[…] Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under section 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[29] There is no doubt Mr. Ranger was cooperative, but there is also no doubt handcuffing and searching a person under arrest prior to placing him in the police cruiser is a police action justifying a brief delay. This is not the same situation as prior to making an ASD demand where only reasonable suspicions have been formed but rather a situation where Mr. Ranger is now under arrest pursuant to a Criminal Code offence and detained and about to be placed in the back of a police cruiser. It only seems sound, prudent and safe for both the officer and the detainee, Mr. Ranger in this case, that this cursory search, following the handcuffing, be done at this juncture. This action would only have taken a short moment, most likely less than one minute when considering his description of the search in his testimony in chief, leaving less than a three minute delay in providing Mr. Ranger with his RTC. However, for the purpose of this analysis, I will consider the delay to inform the defendant of his RTC to have been three minutes.

Section 24(2) Analysis

[30] As a reminder, section 24(2) reads:

24(2) Exclusion of evidence bringing administration of justice into disrepute

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[31] The focus of the analysis is whether the admission of the evidence gathered, in this case, the defendant's blood alcohol content as analysed by the qualified technician at the police station, would, "having regard to all the circumstances, (…) bring the administration of justice into disrepute". This analysis is guided by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Supreme Court of Canada has clarified the criteria relevant to determining when the admission of evidence obtained by Charter breaches would bring the administration of justice into disrepute. In assessing and balancing the effect of admitting the evidence on society's confidence in the justice system, the Court must consider:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

1. Seriousness of the Breach

[32] Not informing a citizen, under arrest, of his right to consult and to instruct counsel immediately is often, if not always, considered a serious infringement of the citizen's constitutionally guaranteed right.

[33] In this particular case, Cst. Bashford placed Mr. Ranger under arrest after he failed the ASD. In the process of the arrest, he cuffed him and conducted a cursory search of Mr. Ranger. However, instead of informing him of his RTC immediately, he notified his communication center that he required the assistance of another officer to arrange for the tow of Mr. Ranger's car and for a qualified technician at the police station. He then placed Mr. Ranger inside the police cruiser, retrieved his force-issued card and read, verbatim, the RTC to Mr. Ranger. As such, a period of three minutes from the time of arrest to the time Cst. Bashford read the RTC elapsed.

[34] One would be hard-pressed under these circumstances to conclude to the seriousness of this particular infringement. However, when considering the fact that Cst. Bashford knew and understood his constitutional duty to inform Mr. Ranger of his RTC immediately upon arrest but ignored it because it was not "practical" to do so immediately tends to add to the seriousness of the breach. Police officers can simply not ignore the Charter-protected rights of a person under arrest because it is "impractical" to ensure, inform or implement. In a case such as this one, it is quite "impractical" for a citizen under arrest, cuffed and searched not to be informed immediately of his RTC as guaranteed by the Canadian Charter of Rights and Freedoms.

[35] Another element adding to the seriousness of the Charter-infringed state conduct is the officer's reluctance, in cross-examination, to concede, admit or recognize the morphing of the HTA and Criminal Code investigation, at least when he asked Mr. Ranger whether he had consumed alcohol. This portion of Cst. Bashford's evidence was in the context of a section 10(a) breach claim. I have already concluded no such breach was established in this case. Also, this element (the portion of Cst. Bashford's evidence) does not impact the manner in which the evidence was obtained or in which the defendant was dealt with that evening. One could not conclude to the existence of a nexus between this element and a Charter breach but nevertheless an element to consider on this branch of the section 24(2) analysis (see R. v. Harrison, 2009 SCC 34, para. 26).

[36] But it perhaps impacts somewhat the credibility of his testimony. Considering his evidence as a whole, it would however be an unfair assessment to conclude that he is misleading the Court. His answers about the possible HTA violations should a result short of a fail on the ASD be registered were still accurate but that was not questions asked of him in cross-examination. Also, ultimately, the officer did agree with counsel's suggestions that his HTA investigation had, at one point, morphed into a Criminal Code investigation. Perhaps the officer had never considered when that point was specifically prior to being asked.

[37] In any event, the perception of this part of his evidence impacts somewhat his explanation about the reason why he delayed the RTC knowingly. In short, he delayed informing Mr. Ranger of his RTC immediately upon arrest for the laudable cause of detaining Mr. Ranger as least as possible. In the context of that part of his evidence, it almost sounds to be a justification or an after-the-fact explanation rather than a genuine intention or reflection at the time. In reflecting on this element, I have considered the recent Court of Appeal's decision in R. v. Lai, 2019 ONCA 420, released after submissions were heard but before releasing these reasons.

[38] The "good faith" of an officer can mitigate a Charter infringement. However, in this case, it is almost offensive to consider "good faith" in the face of the officer's knowledge of the immediacy requirement and explanation not to comply with it. My comment here is not meant to be interpreted as attributing "bad faith" either. But the delay to notify the communication center was simply not an action required at this junction nor expected of a knowledgeable and professional police officer.

[39] When considering all of the circumstances here, the Charter infringement is moderately serious but perhaps serious enough to militate for the exclusion of the evidence.

2. Impact of the Breach

[40] Even if I had concluded section 10(a) had been breached and considered the cumulative effect with the section 10(b) breach, one would be again hard-pressed to conclude, in the circumstances of this particular case, that the breaches impacted Mr. Ranger's Charter-protected interests to the point of militating for the exclusion of the evidence.

[41] In this particular case, the breach in delaying by three minutes to inform Mr. Ranger of his RTC, has very little impact on his Charter-protected interests. It is certainly closer to the "fleeting and technical" end of the range rather than the "profoundly intrusive" one as expressed at para. 76 of Grant, supra.

[42] The ASD sample had already been properly obtained and analysed; no further evidence was obtained in the interim; and once the RTC was provided and ultimately fully implemented at the station, only then were the samples of breath into the Intoxilyzer obtained. This is certainly a situation where R. v. Jennings, 2018 ONCA 260, clearly applies (see para. 29 to 32) in concluding that the collection of those breath samples amounted to a minimal intrusion and a section 8 breach under these circumstances would not favour the exclusion of that evidence under this branch.

[43] Having concluded that the three minute delay in informing the defendant of his RTC following his arrest only carries a very minimal impact on Mr. Ranger's Charter-protected interests, this analysis would certainly militate towards the inclusion of the evidence.

3. Society's Interest

[44] This final criteria of the analysis inquires as to "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion." (Grant, supra, para. 79). This is where society's interest in the adjudication of the case on its merits is considered.

[45] When considering the teachings of our Court of Appeal in R. v. McGuffie, 2016 ONCA 365, at para. 62 and 63, the following conclusions appear clear:

i. the evidence is reliable and critical to the Crown's case;

ii. both of the first two inquiries, considered together, provide weaker support for the exclusion of the evidence; in fact, only the first inquiry could possibly support such exclusion;

iii. this third branch of inquiry militates for the admission of the breath samples.

[46] The Supreme Court in Grant, supra, at para. 68 to 70 explained:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But section 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, section 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The section 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[47] In conclusion, when balancing the three factors and considering the section 10(b) breach in this case on the long term repute of the administration of justice, the evidence about Mr. Ranger's blood alcohol content (BAC) ought to be admitted into the trial proper.

[48] The Charter application is therefore denied.

Presumption of Identity Issue

[49] Now turning to the trial proper, the presumption of identity issue. As stated earlier, Exhibit 1 is the Certificate of a Qualified Technician pursuant to section 320.32(1) as prepared and served after the enactment of the new regime and Exhibit 2 is the original Certificate of a Qualified Technician pursuant to section 258(1)(g) as it existed at the time of the alleged offence. This is the evidence presented by the Crown at trial to prove the BAC of Mr. Ranger at the time of the driving.

[50] Each counsel provided the Court with the various recent decisions delivered by colleagues at the Ontario Court of Justice dealing with this issue in the context of transitional cases, that is where a person was charged under the old regime but prosecuted after the amendments came into effect on December 18, 2018. These cases can be categorized in two lines of reasoning: one concluding that the evidentiary shortcut to prove the BAC of the accused at the time of driving is not available (R. v. Shaikh, 2019 ONCJ 157, Burstein, J. reasons delivered on March 26, 2019; R. v. Melhado, [2019] O.J. No. 1993, S.D. Brown, J. reasons delivered April 3, 2019; R. v. Jagernaugh, 2019 ONCJ 231, Renwick, J. reasons delivered on April 11, 2019); and the other line of reasoning takes the contrary view (R. v. Sivalingam, 2019 ONCJ 239, Schwarzl, J. reasons delivered April 17, 2019; R. v. Porchetta, 2019 ONCJ 244, Rose, J. reasons delivered April 18, 2019; R. v. Chavez, 2019 ONCJ 278, Parry, J. reasons delivered April 30, 2019 and R. v. McRae, Kenkel, J. reasons delivered May 14, 2019).

[51] I do not intend on providing extensive reasons on this issue as colleagues have done so very eloquently, comprehensively and in my humble opinion, correctly reaching the conclusion that the presumption of identity is still available to the prosecution of the transitional cases for the offence of "over 80" pursuant to the old section 253(1)(b) of the Criminal Code. To this end, I specifically rely on Schwarzl, J. discussion of the Old Law vs New Law, section 4.2 of his decision (starting at para. 68) in R. v. Sivalingam, supra. His summary is found at para. 112:

112 In summary, I find that the only rational interpretation of the new law is that the presumption of identity established in former section 258(1)(c) applies to all 253(1)(b) trials not commenced until on or after December 18, 2018 given,

(a) that the Act to amend clearly intended to make excess alcohol trials as simple as possible;

(b) that the Act to amend did not intend in the repeal of section 258 to make outstanding Over 80 trials more and needlessly complex, reintroduce old defences, or deprive defendants of the use of the lowest test result;

(c) that the inapplicability of the old presumption of identity is incompatible with the object of the new law so much so as to defeat one of its stated purposes; and

(d) that there is no clear intention of Parliament to abolish the old presumptions not otherwise replaced for outstanding Over 80 matters.

[52] I also specifically rely on Rose, J. legislative analysis found in his decision R. v. Porchetta, supra, starting at para. 23. His conclusion is found at para. 30 and 38:

30 I would therefore give effect to the preamble as mandated by section 13 of the Interpretation Act to find that, in law, Parliament's intention with C-46 was to simplify the manner of proof when the defendant is charged with excess blood alcohol. This was legislative response to the unacceptable level of dangerous driving occurring in Canada which kills or injures thousands of people each year. I find that Parliament's intention is clear and unambiguous. Any suggestion that C-46 rendered the manner of proof of BAC more difficult would be in tension to the clear, unambiguous language of Parliament. It is axiomatic that principles of statutory interpretation require the Court to read the words of the Criminal Code in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, see R. v. Myers 2019 SCC 18 at par. 19. The Criminal Code must be read as a coherent whole.

38 Aside from the substantive nature of section 258, and clearly substantive changes to the drinking and driving legislation, I find that Parliament had a clear intention in C-46 to simplify the law relating to proof of BAC. It would be quite inconsistent to find that Parliament intended to keeps.253(1)(b) intact for legacy cases but make it substantially more difficult to prove those charges by wiping away the presumption of identity and rendered null and void the police investigations for those cases. That would be absurd. Furthermore, C-46 affected not just the new law, but the old one as well, as discussed above. If Parliament were to have intended the preamble about simplification of manner of proof of BAC in Over 80 cases to apply only to new charges under section 320.14, but not the old ones that it repealed but still in the Court system, it would have said so. I disagree with Burstein J.'s finding in Shaikh at par. 34 (iii) that the new evidentiary provisions can be adopted to trials of existing charges. It is not possible to do that and still implement Parliament's express intention to simplify proof of Over 80 cases. The new Over 80 and impaired operation provisions are quite different. The presumption of identity is unnecessary in the new provisions because the new legislation doesn't require proof of BAC at the time of driving.

[53] I adopt their reasoning.

[54] Therefore, looking at the evidence as a whole, including the Certificate of a Qualified Technician in this case, I find the Crown has proved the charge against Mr. Ranger, beyond a reasonable doubt. As such Mr. Ranger, I find you guilty of having operated your motor vehicle while your BAC exceeded the legal limit.

Released: June 14, 2019

Signed: Justice Julie I. Bourgeois