COURT FILE NO.: SCA(P) 717/21
DATE: 2022 02 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Patrick Quilty, for the Respondent
Respondent
- and -
AMET RASWAN
Adam Little, for the Appellant
Appellant
HEARD: January 10, 2022, by video conference
REASONS FOR JUDGMENT
[On appeal from the conviction registered by Justice Bruce Duncan of the Ontario Court of Justice at Brampton on March 8, 2021 with Reasons reported at [2020] O.J. No. 1572]
F. Dawson J.
[1] The appellant was convicted of operating a motor vehicle while having a blood alcohol concentration (BAC) exceeding 80 milligrams of alcohol in 100 millilitres of blood (“over 80”), contrary to s. 253(1)(b) of the Criminal Code. The offence was alleged to have occurred on December 17, 2017. However, the appellant’s trial did not commence until October 23, 2019. That was after the amendments to the drinking and driving provisions of the Criminal Code brought about by S.C., 2018, c. 21 (Bill C-46) came into effect on December 18, 2018. Due to these circumstances the appellant’s case may be referred to as a transitional case.
[2] The trial judge rejected the appellant’s submission that he must be acquitted because the presumption of identity in s. 258(1)(c) of the Criminal Code was not available in transitional cases and the Crown had failed to present expert evidence relating the results of the appellant’s breath tests back to the time of driving.
[3] The drinking and driving provisions of the Criminal Code, as they existed prior to the amendments, required the Crown to prove that the BAC of an accused exceeded 80 milligrams at the time of the driving. Proof of that was assisted by statutory presumptions that the results of subsequent breath tests administered in compliance with specified requirements were presumed to be accurate and also, subject to certain statutory requirements, presumed to be identical to the BAC of the accused at the time of driving. The presumption of accuracy (POA) and one of two presumptions of identity (POI) were found in s. 258(1)(c) of the Criminal Code. A second POI, added to the Criminal Code to deal with cases of bolus or after the fact consumption of alcohol, was found in s. 258(1)(d.1) of the Criminal Code. The presumptions were rebuttable in certain circumstances as provided for in the sections.
[4] The amendments repealed the statutory regime that had existed to deal with drinking and driving offences and enacted an entirely new set of provisions by adding Part VIII.1 to the Criminal Code, titled “Offences Relating to Conveyances”. The over 80 offence formerly found in s. 253(1)(b) was replaced with a new offence now found in s. 320.14(1)(b) of the Code. The new offence requires the Crown to prove that an accused had a BAC over 80 within two hours after the operation of a conveyance. As it is no longer necessary to prove the BAC at the time of driving there is no need for the POI previously found in s. 258(1)(c), and no similar provision is included in Part VIII.1 of the Criminal Code.
[5] The amendments did, however, enact a new POA found in s. 320.31(1) of the Criminal Code. The new POA provides that if samples of a person’s breath are received into an approved instrument operated by a qualified technician the resulting analysis is “conclusive proof” of the BAC of that person, provided the tests are administered in accordance with a protocol specified in the section designed to ensure an accurate result from the approved instrument. While an accused can challenge compliance with the specified protocol, there is no longer any provision for rebuttal of the presumption.
[6] Also significant for present purposes, the amending legislation contained some transitional provisions. Section 32(2) of Bill C-46 provided that the new POA in s. 320.31(1) of the Criminal Code would apply to all over 80 trials taking place after the amendments came into effect, in relation to breath samples tested prior to that effective date. This had the effect of ensuring that the old POA would not be applied in a transitional case. In the absence of such a transitional provision the former legislation would have applied to the prosecution of a transitional case: see R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221; R. v. Copley, [1988] O.J. No. 923 (C.A.); R. v. Dinley, [2012] 3 S.C.R. 272, 2012 SCC 58; Interpretation Act, R.S.C. 1985, c. 21, ss. 43-44.
[7] Soon after the amendments came into effect accused persons in transitional over 80 cases began to argue that, because the POI in s. 258(1)(c) of the Criminal Code had been repealed, the Crown’s case must fail unless the Crown called an expert to relate the breath test results back to the time of driving. The countervailing argument was that, per Ali, Copley, Dinley and The Interpretation Act, the previous law remained effective for transitional cases, except to the extent that would be inconsistent with the amendments.
[8] That countervailing argument was rejected in the Ontario Court of Justice in R. v. Shaikh, 2019 ONCJ 157 and R. v. Jagernauth, 2019 ONCJ 231. That rejection spawned a great deal of litigation in the Ontario Court of Justice. The vast majority of those subsequent cases rejected the reasoning in Shaikh and Jagernauth and held that the POI remains available in transitional over 80 cases. That has also been the result in subsequent summary conviction appeal cases decided in this court and in a case decided by the British Columbia Court of Appeal: see R. v. Persaud, 2020 ONSC 3413; R. v. Sikora, 2021 ONSC 5869; R. v. Pawson, 2021 BCCA 22, leave to appeal refused [2021] S.C.C.A. No. 154; and the cases cited therein.
[9] Before the trial judge, and again on this appeal, counsel for the appellant advanced a highly technical argument that Parliament demonstrated its intent that the old POI should not be applied to transitional cases when it included a transitional provision in the amending legislation making the reformulated POA found in s. 320.31(1) of the Criminal Code retroactively applicable to transitional cases. Counsel submits that the new POA is based on science because it specifies that, if the enumerated preconditions to an approved instrument providing an accurate test as set out in s. 320.21(1) are complied with, the results of the tests are “conclusive proof” of the accuracy of the breath test result. Counsel submits that Parliament must have known that in R. v. St.-Onge Lamoureux, 2012 SCC 37, [2012] 3 S.C.R. 187, the court found that the POI in s. 258(1)(c) violated the Charter but was upheld as a reasonable limit under s. 1 of the Charter, only because it could be rebutted by the accused demonstrating machine or operator error. Yet the new POA, which was made retroactively applicable to transitional cases, categorically rejects that notion. Therefore, the argument goes, Parliament has clearly expressed its intent that the old POI is not available in transitional cases because the basis for its constitutional validity has been eliminated. The appellant submits that the application of the old POI in transitional cases is fundamentally at odds with, and cannot be reconciled with, Parliament’s determination that the new POA applies to all trials commenced after the amendments came into effect.
[10] The trial judge described the history of the POI and POA and the constitutional wranglings associated with prior amendments of the Criminal Code. He then provided four separate bases on which he rejected the appellant’s submissions.
[11] Counsel for the appellant has made the same argument in other cases, where it has been rejected for one reason or another. See for example, R. v. Fram, [2019] O.J. No. 2276 (O.C.J.); R. v. Zebrowski, [2019] O.J. No. 4312. Most significantly, in my view, the same argument was made by appellant’s counsel and rejected by Charney J. of this court in Sikora. Charney J. provided a thorough analysis for rejecting the appellant’s argument. In Sikora, Charney J. applied the determination in Persaud that the POI in s. 258(1)(c) remains available in transitional over 80 prosecutions. At para. 47 of Sikora, Charney J. also held as follows:
I also reject the Appellant’s argument that this interpretation would lead to an unconstitutional result because the presumption of identity would continue but the accused would be denied the ability to rebut the presumption by leading evidence showing the breathalyzer was malfunctioning or operated improperly. The Appellant did not attempt to proffer any such rebuttal evidence at trial, so this is something of a hypothetical question in this case. Whether such evidence is admissible for offences committed after December 2018 is irrelevant to its admissibility for offences committed pre-Bill C-46. The continuation of the presumption of identity in transitional cases is a package deal, and the “corresponding methods of proof” (Persaud, para. 44), apply to both the Crown and the defence. Properly interpreted, the appellant was free to lead evidence to rebut the presumption of identity exactly as he could have done prior to the enactment of Bill C-46. This interpretation is also consistent with the Charter of Rights and Freedoms.
[12] I observe that, as in Sikora, no attempt was made in this case to tender evidence to rebut the POI in s. 258(1)(c) of the Criminal Code.
[13] The respondent submits that I should follow the decisions in Sikora and Persaud as decisions of courts of concurrent jurisdiction, unless I am satisfied that they are clearly wrong. The respondent adds that at least 44 decisions in the Ontario Court of Justice have rejected important underlying aspects of the appellant’s position since 2019. The citations were provided to me, but I do not propose to reproduce them here.
[14] In my view there is merit in the respondent’s submission. In R. v. Scarlett, 2013 ONSC 562, at para. 43, Strathy J. (now C.J.O.) wrote:
The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.
[15] This paragraph of Scarlett was recently cited with approval and applied by Paciocco J.A. in R. v. Chan, 2020 ONCA 333, at para. 38. See also R. v. Williams, 2020 ONSC 6347, at para. 11, and R. v. Sinnappillai, 2020 ONSC 7038, at para. 29.
[16] There are good reasons for taking this approach. Certainty in the law is desirable. Judicial resources are scarce. Rearguing and reanalysing the same point repeatedly at the same court level is frequently counterproductive, having regard to such considerations. I do not mean to be critical of counsel in making this point. However, it seems to me that the time may have come to have this issue resolved at a higher level if counsel wishes to keep pursuing this argument.
[17] Duncan J.’s analysis below goes somewhat beyond the points dealt with in Sikora and Persaud and raises other interesting considerations. However, it is not necessary for me to deal with the appellant’s submissions in relation to those additional points to deal with this appeal. Counsel acknowledged that if I were to find that the POI remains available in transitional cases I should dismiss the appeal. As I am not persuaded that Sikora or Persaud, both of which came to that conclusion, were wrongly decided, I conclude this appeal should be dismissed.
[18] The stay of driving prohibition granted pending appeal expires with the release of these reasons.
F. Dawson J.
Released: February 7, 2022
COURT FILE NO.: SCA(P) 717/21
DATE: 2022 02 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AMET RASWAN
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: February 7, 2022