Ontario Court of Justice

Date: 2022 07 25 Court File No.: BRAMPTON 20-336

Between:

HER MAJESTY THE QUEEN

— AND —

ALEXANDER LOPEZ RUIZ

Before: Justice W.J. Blacklock

Heard on: March 24th, 2022 Ruling on Admissibility released on: July 25, 2022

Counsel: Ms. Hopkins......................................................................................... counsel for the Crown Ms. Spence............................................ counsel for the accused Alexander Lopez Ruiz

Ruling on Admissibility

BLACKLOCK J.:

[1] Mr. Ruiz is charged with impaired operation and operation in excess of the legal limit.

[2] I now have an objection to the admissibility of certain evidence tendered on this trial which includes the print outs from the Intoxilyzer used in this case as well as the Breath Technician’s Certificate and the Certificate of an Analyst.

[3] The objection is taken on the basis that it is said that the breath technician cannot give evidence that the solution used in the Intoxilyzer was certified by an analyst as required under section 320.31(1)(a) of the Criminal Code in order to put the presumptions potentially available to the Crown in this matter on their feet.

[4] The defence submits that the decision in Regina v Goldson 2021 ABCA 193, 2021 AJ No 709 Alta CA stands for the proposition that the fact that the solution used in the Intoxylizer has been certified by an analyst cannot be proven by the viva voce evidence of the breath technician as it is hearsay through him. As a result, it cannot also be proven by his certificate as it is based on the same hearsay. It is said that Goldson stands for the proposition that the Crown must either call the analyst or file a proper certificate of the analyst stating that the solution used was suitable to determine the necessary target value for the calibration check of the Intoxylizer.

[5] The defence goes on to argue that while my brother Justice Duncan has rejected the analysis in Goldson supra, in Regina v Singh 2021 ONCJ 539 holding that he was bound to follow the contrary Ontario line of authority, the Supreme Court of Canada has now refused leave to appeal in Goldson supra and consequently the Albert Court of Appeal’s decision should now be seen as controlling.

[6] Let me start with the last argument. I reject the notion that the refusal of leave adds any precedential value to the Alberta Court of Appeal’s decision whatsoever. See in that regard Precedent Unbound Contemporary Approaches to Precedent in Canada 2006 32-1 Manitoba Law Journal 135 at 142-3 and Regina v Meston, 1975 34 CRNS 323 Ont CA. at para 22 where none other than Martin JA set out the following comments of Lord Diplock taken from Gilbert-Ash (Northern) Ltd. v. Modern Engineering (Bristol) Ltd., [1973] 3 W.L.R. 421, at page 442:

"Refusal of leave to appeal does not imply approval by this House of a judgment sought to be appealed against. That judgment carries the same authority as any other unappealed judgment of the Court of Appeal - neither more nor less."

[7] This viewpoint is also supported by a decision of the British Columbia Court of Appeal in United States v Bennet 2014 BCCA 159 at para 18.

[8] That being the case, I believe I remain in exactly the same position Justice Duncan was in Regina v Singh supra and, as I often do, I find his analysis to be compelling.

[9] The hearsay feature of this argument as he clearly and concisely points out, has been repeatedly rejected in various guises over time in this Province although Alberta seems to have more than once taken a contrary approach. I see no reason to conclude that I can or should depart from the approach taken by other courts in this Province until our Court of Appeal or the Supreme Court of Canada clearly gives me one.

[10] That means that both the viva voce evidence of the breath technician and his certificate should be admissible to prove that the solution used in this case was to use the words of the statute under section 320.31(1)(a) “certified by an analyst”.

[11] I do not think that the fact that the certificate of the analyst was filed in this case changes anything. It is true that it does not by its terms refer to 320.31(1)(a) but it does refer to the precursor of that section 258 (1)(f). More importantly, however, it does also purport to be a certificate by an analyst of the Centre of Forensic Sciences certifying that the solution used in this case was “suitable for use” in an “Intoxylizer 8000 c” which on the basis of the evidence I do have here was the very machine used in these tests. In effect, I view that as sufficient to establish that the solution in question was “certified by an analyst” for the purposes of the new successor section 320.31 (1)(a). In my view a solution can hardly be said to be “suitable for use” in a particular machine designed to produce accurate results if its use will lead to inaccuracy in the results the solution is designed to provide.

[12] I would also observe for what it is worth that the transition provisions in Bill C48 section 35 and 38 also make it clear that an analyst under the old provisions is an analyst under the new ones and an approved instrument under the old provisions continues to be an approved instrument under the new ones.

[13] Consequently, I see no reason to exclude the proffered material on this basis either.

Released: July 25, 2022 Signed: Justice W.J. Blacklock