DATE : October 13, 2021
ONTARIO COURT OF JUSTICE Central West Region- Brampton Ontario
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
GURUPKAR SINGH
Before Justice B Duncan
Reasons for Judgment released on October 13, 2021
Counsel: Patrick Quilty ............................................................................................... Counsel for the Crown Adam Little ............................................................................................ Counsel for the Defendant
B Duncan J. :
[1] The defendant is charged with impaired and exceed 79, offence date January 20 2020.
[2] The trial was heard by me on August 11 and 12 2021. My decision on most of the issues raised was given at that time. One issue affecting only the exceed charge was adjourned for further submissions, ultimately heard on October 1. These are my reasons and decision on that issue.
The facts:
[3] The facts relevant to the issue can be very briefly stated: The Crown endeavoured to prove its case through reliance on the presumption of accuracy in section 320.31 of the Code which requires proof of a calibration check that shows agreement within 10% of a target value of an alcohol standard that is certified by an analyst. But the Crown did not present a certificate of an analyst or call an analyst to give viva voce evidence. Rather it relied on the qualified technician’s certificate that included this statement with respect to each sample:
Before taking the sample I conducted a system calibration test the result of which is 102 which is within 10% of the target value of the alcohol standard that was certified by an analyst.
The issue:
[4] The issue is whether this statement contained in the QT’s certificate can provide the proof necessary to give rise to the presumption or whether evidence from the analyst is required either viva voce or by certificate in order to prove that the solution was certified by an analyst.
[5] The core submission in support of the requirement for direct evidence from an analyst is that the QT’s statement regarding an analysis that he did not conduct or even witness is hearsay.
[6] The issue has been around for decades – long before the new legislation. [1]
[7] In R. v. Gorgichuk , [1970] A.J. No. 61 (C.A.) the Court held that the statement re the suitability and certification of the solution in the QT’s certificate was hearsay and that the Crown was required to present the analyst or, more usually, a certificate of an analyst to provide the required proof. Five years later the Ontario Court of Appeal disagreed in R. v. Ware, [1975] O.J. No. 705 (C.A.) . The conflict was eventually settled by the Supreme Court of Canada in R. v. Lightfoot, [1981] 1 S.C.R. 566. The Ontario view prevailed. The statement in the QT’s certificate sufficed; there was no requirement for the analyst’s evidence or certificate.
[8] In 1985 the relevant sections were amended in a way that lead a number of trial and summary appeal courts to conclude that the law as stated in Lightfoot had changed and that an analyst’s certificate was now required. However, Courts of Appeal in Saskatchewan and later in Ontario rejected this position and re-confirmed the continued applicability of Lightfoot: see R. v. Harding, (1994) OJ 410 (CA).
[9] The advent of the present legislation has again resurrected the argument. One of the early cases, if not the first, to deal with the issue was R. v. Flores-Vigil, 2019 ONCJ 192. In that case the Crown attempted to present an analyst’s certificate, but it was ruled inadmissible for non-compliance with notice and disclosure requirements. The certificate also failed to state the target value of the standard solution (para 15). While most of the judgment dealt with the court’s view that the target value of the alcohol standard had to be known for a proper calibration, the court also said that evidence from the QT reporting that she had seen the analyst’s certificate and testifying as to its content was hearsay and could not be given without tendering the certificate itself (pars 34). This holding-that an analyst’s certificate or evidence was required- became known as the Flores-Vigil issue.
[10] Within days of the Flores-Vigil decision, the same argument was rejected in R. v. Does, [2019] OJ 233. There then followed a flood of cases at the trial level dealing with the issue, the over-whelming majority of which favouring the Does analysis and result. The Crown has presented me with 31 decisions from the OCJ rejecting Flores-Vigil.
[11] More importantly, there have now been at least three decisions from the Ontario Superior Court on summary conviction appeal that have decided the issue in favour of the Crown: R. v. Bahman, 2020 ONSC 638; R. v. Porchetta, 2021 ONSC 1084; R. v. Dalal, 2021 ONSC 2798. No court at that level has reached a contrary conclusion.
Stare Decisis:
[12] The crucial preliminary issue here is whether I am bound by these decisions or, to put it more precisely, whether it is open to me to entertain a new analysis of the issue and come to a different conclusion than reached in the cases cited.
[13] The defence concedes that these cases would normally be binding, but he submits that the Alberta Court of Appeal in R. v. Goldson, 2021 ABCA 193, 2021 A.J. 709 has presented a new analysis not raised in any of the other cases and that he is entitled to present this analysis, together with supplementary augmentations of his own, to any court including this one, and receive a fresh determination of the issue un-encumbered by the precedent of the earlier cases. He seeks to present Flores-Vigil 2.0.
[14] To be clear, counsel is not claiming that Goldson has over-riding impact on the Ontario cases. He is simply adopting the analysis from Goldson and augmenting it. He freely acknowledges that he would be making the same argument if Goldson had never occurred but if he had thought of the new analysis himself. Goldson merely provides high authority supporting that new analysis.
[15] Mr. Little presents three cases in support of his argument that it is open to this court based on the new analysis to re-visit and depart from the otherwise binding precedent: R. v. Evans, 2015 ONCJ 305; R. v. Cole, 2017 ONCJ 83; R. v. Richard, [1993] OJ 304. Evans and Cole – decisions of my former colleagues as judges of this court – dealt with the same issue – whether they were bound by a summary conviction appeal decision in Kumarasamy that they regarded as inconsistent with Supreme Court of Canada dicta in Borden and other decisions of the SCC and Court of Appeal. Stribopoulos J in Evans held that he was not bound by Kumarasamy because it did not “avert to the implications of Borden” and misinterpreted [2] the other decisions and was therefore per incuriam and not binding. Schreck J in Cole put it more simply: “I may be bound by Kumarasamy but Borden is more binding”. (para 26).
[16] I do not think these cases are of any assistance in the present issue. They deal with situations in which the ostensible binding case conflicts with one or more decisions from even higher courts that are also binding – a situation where the court cannot follow one binding decision without failing to follow the other. That is not the case here where there is no second conflicting binding decision.
[17] For its part, the Crown argues that the issue was settled in R. v. Sikora, 2021 ONSC 5869, where in a situation analogous to the present case, counsel on summary conviction appeal was advancing a revised argument ( Shaikh 2.0) on the same point as decided in an earlier summary conviction appeal case, Persaud. However, as I read Sikora, the appeal was dismissed because the court agreed with Persaud and not because he was foreclosed by stare decisis from entertaining a new approach to the same point. [3] I do not find that decision to assist in the present case either.
[18] More to the point are two judgments of the Supreme Court of Canada – Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] SCJ No 72 and R. v. Comeau, [2018] 1 S.C.R. 342, [2018] SCJ No 15.
[19] Bedford involved a wide-ranging challenge to the constitutionally of the prostitution provisions of the Criminal Code. Some of the issues raised had been dealt with in a 1990 advisory Reference decision of the Supreme Court of Canada. The judge at first instance in Bedford received evidence and made findings on some points that conflicted with pronouncements in the Reference decision. The Supreme Court dealt with the preliminary question of whether and under what circumstances a Charter issue can be revisited:
Revisiting the Prostitution Reference
38 Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.
39 The issue of when, if ever, such precedents may be departed from takes two forms. The first "vertical" question is when, if ever, a lower court may depart from a precedent established by a higher court. The second "horizontal" question is when a court such as the Supreme Court of Canada may depart from its own precedents.
40 In this case, the precedent in question is the Supreme Court of Canada's 1990 advisory opinion in the Prostitution Reference, which upheld the constitutionality of the prohibitions on [page1127] bawdy-houses and communicating – two of the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(b) of the Charter, and, if so, whether the limit was justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2(b), it was a justifiable limit under s. 1 of the Charter. While reference opinions may not be legally binding, in practice they have been followed (G. Rubin, "The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law" (1960), 6 McGill L.J. 168, at p. 175).
41 The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the evolution of the law in that area; the evidentiary record was richer and provided research not available in 1990; the social, political and economic assumptions underlying the Prostitution Reference no longer applied; and the type of expression at issue in that case (commercial expression) differed from the expression at issue in this case (expression promoting safety). The Court of Appeal disagreed with respect to the s. 2(b) issue, holding that a trial judge asked to depart from a precedent on the basis of new evidence, or new social, political or economic assumptions, may make findings of fact for consideration by the higher courts, but cannot apply them to arrive at a different conclusion from the previous precedent (para. 76).
42 In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence [page1128] that fundamentally shifts the parameters of the debate.
[20] Five years later, the Court in Comeau expanded on Bedford. That case involved a prosecution under the New Brunswick Liquor Act for bringing liquor in excess of a certain amount into the province from Quebec. The legality of the relevant law, submitted to be an unlawful interprovincial tariff, was governed by a century old decision of the SCC, Gold Seal Ltd. v. Alberta (Attorney General), [1921] 62 S.C.R. 424. The trial judge however received and accepted expert evidence to the effect that a deep dive into the historical record demonstrated that Gold Seal was wrongly decided. On that basis the trial judge declined to follow Gold Seal and acquitted.
[21] On appeal, eventually to the Supreme Court, the Court dealt with the stare decisis issue at length (Pars 26-43) [4] and held that the trial judge had erred in failing to follow binding precedent. In doing so the Court re-affirmed Bedford that stare decisis can be rebutted only in very narrow circumstances – and that a new interpretation of a statute is not one of them:
42 Moreover, a difference in opinion about the interpretation of a statutory provision does not evince a fundamental shift in the parameters of the debate. The debate and its parameters remain unchanged. The only change is the answer provided.
[22] In this case, the issue is the same as previously decided. There is no new statutory provision; there is no new evidence. There is only a new interpretation. In my view that does not unshackle this court from the bonds of precedent.
[23] The appellant can present the new interpretation (or any other argument) to a summary conviction appeal court or to any higher court. Those arguments may be found to have merit and may be accepted. Or maybe not. However, in my view they are not open to re-consideration at this level of court in Ontario at this point in time.
[24] I am bound to follow the binding authorities and find that the questioned component of the presumption of accuracy has been properly proven.
[25] The defendant will be found guilty of this offence on the next court appearance.
Released: October 13, 2021 Justice B Duncan
[1] Bill C- 46 in force December 18 2018
[2] I think this goes too far. I do not think it was not open to the trial court to declare a “misinterpretation” by the appeal court and for that reason thereby avoid its binding authority. Richards – where several higher inconsistent decisions were not brought to the court’s attention or mentioned – is a cleaner example of the per incuriam rule. It was not a situation of “misinterpretation”
[3] Nor could he have been since the courts in Persaud and Sikora were both summary conviction appeal courts
[4] All of which should be read, even though I have quoted only one short paragraph.