COURT FILE NO.: CR-21-0000048-00AP
DATE: 20230518
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Appellant
– and –
DAVID GAULT
Respondent
Matthew Morley and Matthew Shumka, for the Appellant
Adam Little, for the Respondent
HEARD: October 19, 2022
J. R. Presser J.
I. INTRODUCTION
[1] This is a Crown summary conviction appeal from acquittal.
[2] On July 29 and 30, 2021, the Respondent David Gault was tried in the Ontario Court of Justice by the Honourable Justice D. Cole on one count of having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of operating a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. The matter proceeded with evidence being heard in a blended fashion in relation to both a Charter voir dire and the trial.[^1]
[3] The Crown filed the certificate of qualified technician (“CQT”) to establish Mr. Gault’s blood alcohol concentration, which it showed to be “80 or over.” The Crown called the arresting officer to testify, but neither the qualified technician (“QT”) nor the analyst testified. No certificate of analyst (“CoA”) to prove the certification and target value of the alcohol standard used for system calibration checks was filed. The Crown sought to rely on the CQT as evidence of the facts alleged in it under s. 320.32(1) of the Criminal Code, and on the presumption of accuracy (“POA”) under s. 320.31(1) of the Code.
[4] The defence argued that the Crown had not succeeded in establishing the statutory pre-requites to the operation of the POA beyond a reasonable doubt. Defence counsel pointed to the printout from the approved instrument (“AI”), which showed that there had been a system calibration check, followed by a “deficient sample,” and then no further calibration check before Mr. Gault’s first breath sample that was analyzed. The defence position was that a deficient sample constitutes a “sample” within the meaning of s. 320.31(1), which necessitated that a new system calibration check be completed before any sample of Mr. Gault’s breath could be analyzed by the AI. Because there was no new calibration check after the deficient sample, the defence argued, the statutory prerequisites to the POA were not met.
[5] The trial judge accepted this argument. He found that the POA could not be applied. The Crown had not proven that the Respondent’s blood alcohol content (“BAC”) was “80 or over.” He acquitted the Respondent.
[6] The Crown now appeals the Respondent’s acquittal, arguing that the trial judge erred in law in his interpretation of the statutory pre-requisites to the POA under s. 320.31(1)(a). A deficient sample is not a “sample” within the meaning of the provision, and there is no requirement that calibration checks be performed immediately before each sample.
[7] The Respondent resists the Crown appeal. He submits that the trial judge made no error in his interpretation of the provision, that the Crown appeal should be dismissed, and the acquittal upheld.
[8] The Respondent raises an additional issue for the first time on appeal in support of his acquittal. One of the statutory pre-requisites to the operation of the POA in s. 320.31(1)(a) is that the Crown must prove that the QT conducted a system calibration check that was within 10% of the target value of an alcohol standard that is certified by an analyst. The Respondent submits that in tendering the CQT to prove the certification and target value of the alcohol standard, the Crown was relying on inadmissible hearsay. According to the Respondent, this statutory pre-requisite cannot be proven beyond a reasonable doubt on the basis of such inadmissible evidence. Consequently, the Crown could not rely on the POA and could not prove the BAC. The Respondent had to be acquitted. The Respondent argues that other cases holding that the CQT is not inadmissible hearsay are not binding on this Court.
[9] The Crown asks this Court not to entertain the Respondent’s hearsay argument because it does not meet the jurisprudential tests for appellate consideration of a new issue. If this Court decides to consider the Respondent’s new issue, the Crown submits that prior decisions holding that the CQT is not inadmissible hearsay are binding.
[10] For the following reasons, I find that the trial judge erred in law in his interpretation of the statutory pre-requisites to the operation of the POA contained in s. 320.31(1)(a) of the Criminal Code. Applying the principles of statutory interpretation, a breath sample that is deficient because a defendant did not blow with enough force cannot be interpreted to be a “sample” within the meaning of the provision. There is no legislative requirement that the mandated system calibration check occur immediately before each sample. Applied to the circumstances of this case, the legislation did not require a fresh system calibration check between the “deficient sample” and the first sample of the Respondent’s breath that was analyzed. Accordingly, the Crown was entitled to rely on the POA to prove the BAC. With respect, the learned trial judge erred in finding otherwise.
[11] I would not uphold the acquittal on the basis that the CQT is hearsay that is inadmissible as proof that an analyst certified the target value of the alcohol standard used to perform system calibration checks. I am bound by horizontal stare decisis and judicial comity on this point. Given my conclusion that I am bound by prior decisions to reject the Respondent’s hearsay argument, I need not consider the Crown’s request that I not entertain this new issue on the merits on appeal.
[12] The appeal is allowed. A new trial is ordered.
II. BACKGROUND
[13] On June 2, 2020 at 7:53 p.m., police received a telephone call reporting a hit and run on Royal York Road in Toronto, by a driver who was possibly impaired. Officer Brad Mills responded to the call. He arrived at the scene at 7:55 p.m. He saw a male who matched the description of the driver from the radio call standing 5 to ten metres away from a black Mustang that, in the opinion of the officer, had fresh damage to its front and side.
[14] The Respondent admitted at trial that he was driving his motor vehicle at 7:52 p.m. on June 2, 2020. He agreed that he was the person standing on the sidewalk near the Mustang.
[15] Officer Mills approached the Respondent. He testified that he detected a strong odour of alcohol, the Respondent was not steady on his feet, and had “glossy eyes.” The Officer said that the Respondent gave deceptive non-sensical answers to his questions. Officer Mills arrested the Respondent for impaired driving, and made a demand for a sample of the Respondent’s breath into an AI. Keys to the Mustang were found on the Respondent’s person in a search incident to arrest.
[16] The Respondent was taken to a police station where he provided two samples of breath that were analyzed by an AI operated by a QT. Analysis of the first sample, provided at 9:56 p.m., reported 190 mg of alcohol in 100 ml of blood. The second sample, provided at 10:22 p.m., provided a BAC reading of 170 mg of alcohol in 100 ml of blood. The Respondent was charged with having a BAC of “80 or over” within two hours of ceasing to operate a conveyance under s. 320.14(1)(b) of the Criminal Code.
[17] At trial, the only witness called by the Crown was the arresting officer, Officer Mills. The Crown did not call the QT or the analyst. Evidence from the AI and the QT were introduced in documentary form. The Crown tendered the CQT, which was identified by the arresting officer. He had received it from the QT, signed it, provided a copy of it to the officer-in-charge, and served it on the Respondent. The CQT included statements that said that the result of the system calibration checks before each sample were “within 10% of the target value of the alcohol standard that was certified by an analyst,” and that “the alcohol standard had a target value of 100 mg of alcohol in 100 ml of blood [and] was certified by an analyst.” It also indicated that system air blank tests were performed before each sample, that they gave a reading of 0 mg of alcohol in 100 ml of blood, and that there was an interval of at least 15 minutes between the two samples.
[18] Evidence from the AI was entered in evidence through a printout from the machine, tendered by the defence in cross-examination of Officer Mills. This printout demonstrated that, starting at 21:42:57 (9:42:57 p.m.), the AI went through four air blank tests, two diagnostic tests, and one calibration check before the AI registered a “deficient sample” at 21:51:38 (9:51:38 p.m.). The machine then did one further air blank test before the first subject test of the Respondent’s breath at 21:56:17 (9:56:17 p.m.). There was no calibration check between the deficient sample and the first subject test. There were a number of further air blank tests, two further diagnostic tests, and a further calibration check between the first and second subject tests. All air blank tests, calibration checks, and diagnostic tests showed the AI to be functioning properly.
[19] The Crown introduced a number of videotapes, including videos from the police station breath room, through Officer Mills. These were entered as exhibits.
[20] The Respondent testified at trial. He explained that on June 2, 2020, he had been drinking vodka at a friend’s house. It made him feel sick to his stomach. He started to feel intoxicated after drinking the vodka. He wanted to get to a pub quickly to eat some chicken wings. He was driving there when this incident occurred. The Respondent acknowledged that he was intoxicated, that this affected his judgment and ability to understand what was happening at the time, and his memory of these events afterwards. He agreed that the best evidence of what happened that evening was what was on the videos, and that the breath room videos showed that he was warned multiple times that if he did not provide a proper breath sample he would be charged with refuse. The Respondent agreed that he appeared intoxicated on the videos.
[21] At the close of the evidence, the defence raised a preliminary legal issue, arguing that the Crown could not rely on the POA in s. 320(1) of the Criminal Code. Respondent’s counsel pointed to the requirement in s. 320(1)(a) that before each sample was received, the QT was required to perform both a system air blank test and a system calibration check. In this case, the Respondent submitted that the evidence did not establish that the required system calibration check was conducted. This is because, the defence argues, the deficient sample was a sample within the meaning of s. 320(1)(a). As a result, another system calibration check was required before the first analyzed sample was received. Without the POA, the Crown could not prove the Respondent’s BAC.
[22] The trial judge asked defence counsel whether there were any authorities on point. Defence counsel said no.[^2] The trial judge called on the Crown to respond to this preliminary legal issue before hearing submissions on the Respondent’s Charter application.
[23] The Crown position was that the legislative prerequisites to operation of the POA were met here. Crown counsel submitted that the contents of the CQT completely satisfied the requirements of s. 320.31(1)(a). A deficient sample is not a sample as a matter of statutory interpretation because it is the QT who determines what qualifies as a “sample” suitable for analysis. According to the Crown, there is no requirement in the legislation of an additional system calibration check following a deficient sample, or that calibration checks be performed immediately before breath samples are received.
[24] The trial judge acquitted the Respondent from the bench. He announced his verdict, saying that he was acquitting because the law entitled the Respondent to an acquittal. He said, although the Respondent “behaved atrociously that day”: “I’m acquitting you on the basis of the clever argument Mr. Jackson [defence counsel] has come up with.”
III. THE LEGISLATIVE CONTEXT
[25] The current Criminal Code provisions governing intoxicated operation came into force on December 18, 2018. They are located in the new Part VIII.1, “Offences Relating to Conveyances.”
[26] Within this new statutory regime, ss. 320.31 – 320.35 deal with “Evidentiary Matters.” The POA in s. 320.31(1) is an evidentiary shortcut for the Crown to prove BAC. This presumption deems that the BAC determined by testing that meets all the statutory requirements of the section is conclusive proof of the person’s blood alcohol level at the time of testing:
320.31 Breath samples (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.
[27] The POA contained in the current s. 320.31(1) replaced predecessor presumptions contained in the former s. 258(1). In s. 258(1)(c), “[b]reath test results taken under specified conditions were conclusive proof of BAC both at the time of testing and the time of driving in the absence of evidence tending to show three things: i) that there was a machine or operator error, ii) that the error resulted in a false reading above 80 and iii) that the true BAC would have been below 80 at the time of the offence”: R. v. Raswan, 2020 ONCJ 182, at para. 39.
[28] The Supreme Court considered the constitutionality of the former s. 258(1)(c), inter alia, in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187. The Court ruled that the requirement that the defendant rebut the presumptions in the provision violated the presumption of innocence, contrary to s. 11(d) of the Charter. This was because the provision would compel a trial judge to convict where a defendant had not been able to raise a reasonable doubt in relation to all three things required to rebut the presumptions, but the trial judge still had a reasonable doubt about whether the AI was malfunctioning or was operated improperly: St-Onge, at para. 27. Ultimately, the Court found the first requirement of rebutting the presumption, that the defendant raise a reasonable doubt about whether there was machine or operator error, was a reasonable limit saved under s.1. The other two requirements were held to be unconstitutional and not saved under s. 1.
[29] Importantly, in coming to its decision in St-Onge, the Court focused on the very real possibility of breathalyzer malfunction or improper operation, and the potential for this to impact on the reliability of breathalyzer test results at paras. 25-27:
The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee (“Committee”) of the Canadian Society of Forensic Science (“CSFS”) has made a series of recommendations concerning the procedures to be followed by the professionals who operate the instruments and verify that they are properly maintained . . . The Committee states that before collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct a system blank test and a system calibration check. . . . According to the Committee, the calibration and maintenance of instruments are essential “to the integrity of the breath test program.”
The Committee’s recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments. . . .
However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant.
[30] In a very real sense, the new POA in s. 320.31(1) can be understood to be a Parliamentary response to the Supreme Court’s concerns in St-Onge about machine malfunction or improper operation and the reliability of test results. The Department of Justice drafted a Charter Statement relating to Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and make consequential amendments to other Acts (the Bill introducing the current intoxicated operation of conveyance legislation), which was tabled in the House of Commons on May 11, 2017. In it, the Department of Justice noted that the following considerations support the consistency of s. 320.31(1) with the Charter:
This provision reflects the procedure that has been determined by the Alcohol Test Committee of the Canadian Society of Forensic Science to constitute proof, to a scientific standard, of BAC. Unlike the provisions that were struck down by the Supreme Court of Canada in R. v. St-Onge Lamoureux (2012), the onus remains on the Crown to prove the offence beyond a reasonable doubt, by proving that the accuracy of the devices was verified and that the tests were conducted in accordance with prescribed procedures. The requirement of a 15-minute delay eliminates the possibility that mouth alcohol could interfere with the result of the test. When these facts have been established, there can be no scientifically valid reasonable doubt as to whether the individual had a BAC above the limit.
[31] There was a further evidentiary shortcut in the former s. 258(1)(g), which established that a certificate of a qualified technician was proof of the facts alleged in the certificate if it stated certain facts about how the breath samples were taken and analyzed.
[32] The requirements of the current POA under s. 320.31(1) can be established in evidence via a CQT, admissible under s. 320.32 of the Code. This broad and general provision addresses all certificates of analysts, qualified medical practitioners, and QTs made under Part VIII.1:
Certificates
320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.
(2) Notice of intention to produce certificate - No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.
(3) Attendance and cross-examination - A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination
[33] The requirements of the POA under s. 320.31(1) can be established in evidence via a CQT, admissible under s. 320.32(1). The combined effect of ss. 320.31(1) and 320.32(1) is to allow the Crown to file a CQT attesting to the fact that all the statutory preconditions to the POA have been met. This will conclusively prove the BAC without calling the QT or the analyst to testify.
[34] The operation of ss. 320.31(1) and 320.32(1) in tandem facilitates proof of BAC. This can be understood as a product of Parliament’s desire to streamline impaired driving prosecutions. In August 2019, the Department of Justice released a Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted (“DOJ Backgrounder”). In the DOJ Backgrounder, at p.7, the Department of Justice explained the rationale for the amendments to the Criminal Code transportation offence regime:
While. . . periodic reforms strengthened measures to combat impaired driving, they also added to the complexity of the Criminal Code’s transportation offence provisions. . . . Moreover, the impaired driving provisions have been subject to such extensive litigation that it is difficult in some cases to understand how they operate from simply reading the text. This, in turn, has impacted effective and efficient investigation, prosecution and sentencing.
The Government introduced Bill C-46 . . . to modernize, simplify and strengthen these provisions.
IV. APPELLANT CROWN’S GROUND OF APPEAL – ERRORS IN STATUTORY INTERPRETATION OF s. 320.31(1)(a) AND IN FAILURE TO APPLY THE POA
A. The Positions of the Parties
[35] The Crown appeals the Respondent’s acquittal on the basis that the trial judge erred in his interpretation of s. 320.31(1)(1) of the Criminal Code. The Crown argues that, in law, a deficient sample cannot properly be considered a sample within the meaning of this provision, properly interpreted. This is because it is the QT who determines whether a sample is a sample suitable for analysis. If the statute compelled a new air blank test and a new calibration check after every single inadequate attempt to provide a sample, this would lead to the absurd result of also requiring a 15-minute interval after every such failed blow under s. 320.31(1)(b). Such a result would be contrary to Parliament’s intent, which was to simplify and streamline drinking and driving investigations and prosecutions. Having erred in his statutory interpretation, the trial judge went on to err in failing to apply the s. 320.31(1) POA, notwithstanding that the statutory pre-requisites to its operation were satisfied.
[36] At trial, the Respondent argued that any sample, even a deficient sample, triggers the requirement of a new air blank test and a new calibration check, before the next sample. In acquitting the Respondent, the trial judge implicitly accepted this interpretation of “sample” within s. 320.31(1)(a).
[37] On appeal, the Respondent agrees that “sample” within the meaning of s. 320.31(1)(a) refers to samples suitable for analysis. He supports the trial judge’s acquittal on the basis that “a calibration check (and an air blank test) must immediately precede those [suitable] breath samples, and that any intervening incident that could affect the reliability of the process will necessitate another calibration check (and another air blank test)”: Respondent Factum on Summary Conviction Appeal, at para. 6. The Respondent submits that the requirement of immediacy flows from the legislative purpose of the provision, which is to both simplify and strengthen the intoxicated operation regime. It does this by streamlining proof, while ensuring the reliability of breath test results. This, he argues, is in line with Charter values. It ensures that defendants cannot be convicted where there is a reasonable doubt about whether the AI was malfunctioning or being operated improperly.
[38] In oral argument, the Respondent agreed that inadequate attempts to blow into the AI with insufficient force or duration, “puffs of air,” would not constitute suitable samples that trigger the requirement of a new calibration check. However, the Respondent argues that there is no admissible evidence as to what the “deficient sample” recorded by the AI in this case was. He submits that the videos of the breath testing process that depict numerous inadequate attempts by the Respondent to blow into the AI with insufficient force or duration were filed as exhibits only in relation to his Charter application. According to Respondent’s counsel, the breath room videos are inadmissible hearsay in relation to issues on the trial proper. In the absence of admissible evidence to explain the deficient sample in this case, it is an intervening event that could affect the reliability of the breath test results. The requirement of a new calibration check was triggered. Because there was no new calibration check between the deficient sample and the first subject sample, the Crown has failed to prove the statutory pre-requisites to the operation of the POA beyond a reasonable doubt.
[39] The Crown responded by submitting that there is no implied requirement of immediacy in s. 320.31(1)(a), and one cannot be read into the provision. The Crown submits that a proper application of principles of statutory interpretation does not support the Respondent’s position. The language of the provision does not include immediacy; resort may not be had to Charter values in interpreting the legislation because there is no ambiguity; and the legislative objective of simplifying the drinking and driving offence regime would not be served by a requirement of immediacy. Finally, the Crown submits that there is no basis to ground a conclusion that in the circumstances of this case, the AI could have become decalibrated and malfunctioned, resulting in unreliable breath test results.
B. Analysis
1. Did the “deficient sample” in the AI printout result from an inadequate blow?
[40] I start by considering whether the deficient sample registered by the AI in this case was the result of an inadequate attempt to provide a breath sample by the Respondent, a mere “puff of air.” If it was, the Respondent concedes, it would not be an intervening event that could adversely affect the reliability of breath test results. And, as a result, would not trigger a requirement of a further calibration check before the sample that was analyzed.
[41] Videos of the breath testing process were filed as exhibits at trial. These reveal that before giving the two samples of breath that were ultimately analyzed, the Respondent made multiple attempts to provide samples that were inadequate. I viewed the breath test videos. By my count, the Respondent made seven blows of insufficient force or duration before providing the first sample that was capable of being analyzed. The QT told the Respondent during these unsuccessful attempts to provide a sample: that he was not blowing with enough force, that he was not blowing with enough pressure or volume, that he was allowing air to escape, that he was stopping and starting in his blows, and that he was not providing a sample. The QT noted that the AI itself was indicating that it was not receiving a proper sample capable of being analyzed. He cautioned the Respondent of the criminal consequences of refusing to provide a sample.
[42] As noted, the Respondent takes the position that the breath test videos were admitted in evidence only in relation to the defence Charter applications on this blended trial. As such, he argues, they are inadmissible hearsay in relation to substantive issues at trial. The Crown takes the position that the breath test videos are admissible evidence in relation to substantive issues, including whether the deficient sample registered by the AI was caused by inadequate “puffs of air” by the Respondent.
[43] I agree that the breath test videos are admissible evidence in relation to the trial proper. There is no indication anywhere in the record that the videos were being tendered only in relation to the Charter applications. There is no evidence of an agreement between counsel to that effect, and no statement to the trial judge on the record that he should only consider the videos in that limited manner. Even if defence counsel had objected at trial to the admission of the videos on the trial proper (which he did not), I consider it likely that they would have been admitted.
[44] All relevant and probative evidence is admissible, subject to recognized grounds of exclusion and policy. This furthers a criminal trial’s truth-seeking function: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 per LaForest J., dissenting but not on this point. It is well trod ground that breath test videos are often relevant to live issues at drinking and driving offence trials. They may be relevant to a defendant’s impairment (see, for example, R. v. Chechel, [1999] O.J. No. 5167 (OCJ), at para. 42). They may be relevant to whether a defendant was failing to provide adequate samples of breath (see, for example, R. v. Smith, 2012 ONSC 4492, at para. 27). Indeed, in this case, the integrity of the breath testing process was very much a live issue, to which the videos were relevant.
[45] There is no recognized exclusionary rule or ground of policy requiring the exclusion of breath test videos, in this case or generally. In her concurring judgment in R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, L’Heureux-Dube J. noted that “[i]t would seem contrary to the judgments of our Court (Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, and B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740) to disallow evidence available through technological advances, such as videotaping, that may benefit the truth seeking process.”
[46] Video tapes are often not hearsay.[^3] As long as they have not been altered or tampered with, they can be independent evidence of what they depict. In R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, the Supreme Court held that video tapes may be admitted and considered by the trier of fact as independent evidence of the identity of a perpetrator. Some of the Court’s holdings in Nikolovski are generally relevant to the evidentiary value of videotape evidence, even outside the context of identity:
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape . . . real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. . . . It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. . . .
The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence.
[47] In this case, the breath test videos were identified by the arresting officer. He was present off camera in the breath room – he and the QT speak on the video. The arresting officer was thus in a position to be able to properly identify the breath videos, which were played for him in court. The videos were made in the breath testing room at the police station. They depict the entire breath testing process. They are of good quality, with clear sound and picture. There is no basis to question the integrity of these videos. Their evidentiary value does not arise from a statement made on them. It arises from what they show. Assessing the evidentiary value of what is on the breath room videos does not depend on being able to cross-examine a deponent as to the truth of a statement made on video. These videos speak for themselves. They are independent evidence of what they depict.
[48] What they depict is that the Respondent made several inadequate attempts to provide a breath sample by not blowing with enough force. I echo Wein J.’s holding in Smith, at para. 27 that, “[a] review of the videotape makes it abundantly clear that the ‘invalid samples’ [in this case, the “deficient sample”] resulted from the failure of the Appellant to blow long or hard enough, as instructed.”
[49] I recognize that the statements made by the QT on the breath room videos, including his statements about the force with which the Respondent was or was not blowing, are hearsay. As such they are presumptively inadmissible for the truth of their content. I have not considered the QT’s comments in assessing whether the “deficient sample” was caused by the Respondent blowing with insufficient force or duration. I came to the conclusion that the “deficient sample” was caused by inadequate blows only from considering the non-hearsay evidence on the breath room videos: their independent depiction of the Respondent’s blows into the AI as he attempted to provide breath samples.
[50] In addition, the AI printout also makes clear that the deficient sample was not a sample that was analyzed. The printout shows a complete absence of any analysis for the deficient sample.
[51] Accordingly, on the basis of the Respondent’s concession, the “deficient sample” registered by the AI was not an intervening event that could have adversely affected the reliability of the breath test results. The statutory requirement of a new calibration check before the first sample that was analyzed was not triggered. The Crown thus satisfied all pre-requisites to the operation of the POA, and a conviction should have followed.
[52] This conclusion on its own would be sufficient to warrant allowing the Crown’s appeal from acquittal. However, I have decided not to determine this appeal on the basis of my factual finding about the inadequate force of the Respondent’s blow and its legal effect on the preconditions to the POA alone. This was not the basis of the trial judge’s decision to acquit. These issues were not before the trial judge. The defence did not take the position at trial that an inadequate blow was not a “sample” within the meaning of s. 320.31(1)(a). Nor did the defence argue at trial that there was no evidence that the “deficient sample” registered by the AI was caused by such an inadequate blow. In fairness, in these circumstances, I consider it appropriate to move on to consider the legal arguments in relation to statutory interpretation of s. 320.31(1)(a) that do arise from the judgment at trial.
2. Did the Trial Judge Err in His Statutory Interpretation of s. 320.31(1)?
i) Standard of Review
[53] The applicable standard of review for questions of law is correctness. The application of a legal standard to the facts of a case is a question of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 36; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20. Statutory interpretation is a question of law: R. v. Kirkpatrick, 2022 SCC 33, at para. 127; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535 at para. 28. It is an error of law not to apply an applicable statutory presumption when the statutory prerequisites have been satisfied: R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98 at para. 66.
[54] In this case, the trial judge decided questions of law when he effectively engaged in statutory interpretation of s. 320.31(1)(a) of the Criminal Code and when he decided not to apply the POA. Accordingly, the applicable standard of review is correctness.
ii) Principles of Statutory Interpretation
[55] Statutory interpretation requires the jurist to look to the words of the legislation and beyond. The words “are to be read 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”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. Legislative history is an appropriate tool for determining the intention of Parliament: Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 31. It is a well-established principle of statutory interpretation that legislatures do not intend to produce absurd consequences: Rizzo, at para. 27. Other interpretive principles, like the presumption that statutes are to be read in a manner that is consistent with “Charter values,” only apply where there is real ambiguity as to the meaning of a provision. A real ambiguity will only exist where the words of the statute are “reasonably capable of more than one meaning”: Bell ExpressVu, at paras. 28-29. The prohibition on using Charter values as an interpretive aid absent ambiguity arises from the need to respect true legislative intent and the division of powers between the legislature and the courts. Courts may not engage in Charter review through the back door of statutory interpretation: Bell ExpressVu, at paras. 60 – 66.
iii) Does “each sample” referred to in s. 320.31(1)(a) mean only breath samples that are analyzed?
[56] The trial judge found that the POA did not apply in this case because he accepted that a deficient sample is properly considered a “sample” within the meaning of s. 320.31(1)(a). With respect, I agree with the Crown that he erred in so finding.
[57] The words of s. 320.31(1)(a) must be read in their entirety and in the context of the rest of s. 320(1). The opening words of s. 320(1) refer to “samples of a person’s breath” that “have been received into an approved instrument” and to “the results of the analysis of the samples.” Against that backdrop, s. 320.31(1)(a) goes on establish the requirement of air blank tests and calibration checks before “each sample.” In this context, “each sample” in s. 320.31(1)(a) can only mean breath samples that have been received into an AI, and that have been analyzed.
[58] This was the finding in Cousins-Tremblay, at para. 26, where the same issue was before the Court:
Section 320.31 must be read in its entirety and in context. The section clearly speaks to the admissibility of the results of analyzed samples, that is to say suitable samples that are tested. Rejected, aborted, or terminated samples are not, by definition, analyzed and as such yield no results. In this case, the first blow was rejected as unsuitable and was not analyzed. It did not produce a result, let alone one which was forensically admissible or even relevant. Perforce, this means that the rejected sample, not having been analyzed, is taken out of the equation when deciding if section 320.31 has been complied with.
[59] To conclude that an inadequate or incomplete sample that was not analyzed is a “sample” within the meaning of s. 320.31(1)(a) would lead to absurd results. It would compel a conclusion that there had to be an interval of at least 15 minutes between each and every puff of breath into an AI under s. 320(1)(b), regardless of whether they were capable of analysis: Cousins-Tremblay, at para. 28. This case provides a good example of how absurd that would be. Here there were seven incomplete attempts by the Respondent to provide a sample of breath that could be analyzed before he provided his first sample that could be analyzed. If those seven attempts were considered to be “samples,” then the QT would have had to wait 15 minutes after each before attempting to take another sample. It would have taken approximately an hour and 45 minutes to obtain the first sample of breath that could be analyzed.
[60] The legislature cannot have intended such absurdity. This kind of complication would run counter to Parliament’s intention in enacting the new Part VIII.1 to simplify and streamline the drinking and driving regime. Moreover, delay of this nature in the breath testing process would be unreasonable, where unreasonableness is a hallmark of absurdity: Rizzo, at para. 27. The longer it takes to obtain a breath sample that can be analyzed, the more police time and resources will be expended, and the longer many defendants who might otherwise be released sooner will be detained for breath testing.
[61] It would be equally absurd for “sample” to have different meanings in s. 320.31(1)(a) and (b). The Respondent suggests that “sample” in (a) and the same word in (b) mean different things. In (a), he argues, “sample” means every single sample, without reference to whether the sample is capable of being analyzed.[^4] Whereas, in (b), only those samples that have been analyzed necessitate a waiting period of 15 minutes before the next sample. This submission ignores the language of the opening part of s. 320.31(1) referred to above, which makes obvious that “sample,” throughout subsection (1), means a sample that has been analyzed. It would be illogical and incoherent to interpret the same word within the same provision differently.
[62] I note that I agree with the Respondent as to Parliament’s intent. Namely, that the legislature enacted the new Part VIII.1 to simplify and strengthen the legislative regime in a number of ways, including by enhancing the reliability of breath test results. Both of these objectives enhance the overall objective of combatting the significant ills of impaired driving by facilitating the investigation and prosecution of offenders: Canada, House of Commons, Official Report of Debates (Hansard), 42nd Parlt, 1st Sess., No. 181 (19 May 2017) (Hon. Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada). These two objectives of enhancing simplicity and reliability work together. If the breath testing process and its results are proven to be scientifically valid and reliable, the POA can operate to streamline “80 and over” trials. This was recognized in R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 34:
The overriding purpose of the evidentiary shortcuts [the presumptions under the former ss. 258(1)(c) and 258 (1)(g)] is to streamline proceedings by dispensing with unnecessary evidence. The preconditions governing the evidentiary shortcuts are concerned with the reliability of the breath test results and their correlation to the accused’s blood-alcohol concentration at the time of the offence.
[63] So, too, in St-Onge, in considering the constitutionality of the then-governing POA with reference to its predecessor provisions, the Supreme Court recognized the mutually reinforcing relationship between the effectiveness of the POA and the reliability of breath test results. At para. 36 of St-Onge, the Court held that: “[b]ecause it was hard to rely on the test results as effective evidence, the presumptions were less useful than they might have been, and the prosecution was hindered in its efforts to combat drinking and driving.”
[64] Parliament’s intention in drafting s. 320.31(1) was to continue to improve the drinking and driving regime both by simplifying the POA and enhancing the reliability of breath test results. It sought to create a process that, if followed, could leave no doubt about the accuracy of the breath results, and could therefore justify an irrebuttable POA and the consequent likely finding of guilt. Each precondition in s. 320.31(1) advances Parliament’s purpose by ensuring the integrity of the breath testing process and the reliability of the test results.
[65] The DOJ Backgrounder supports this view. At p. 45, the DOJ Backgrounder sets out the statutory preconditions that must be proven by the Crown beyond a reasonable doubt before the POA can take effect. It goes on to say that these preconditions “are the operational procedures recommended by the ATC [Canadian Society of Forensic Science Alcohol Test Committee, in its Recommended Operational Procedures (2018)] that, if followed, ensure that the breath test of a person has produced accurate results. If the legislated conditions are proven, BAC at the time of testing is conclusively proven.”
[66] I accept that Parliament’s intention in enacting s. 320.31(1) was to simplify and enhance the integrity of the breath testing process and consequently, the reliability of the test results it produces.
[67] However, there is no basis on which I can conclude that air blank tests and calibration checks before every single puff of air into an AI, even ones that are not capable of analysis, enhances the reliability of breath test results. There is equally no basis on which I can conclude that the absence of air blank tests and calibration checks before every single puff of air, even ones that are not capable of analysis, may make breath test results unreliable. Indeed, the ATC’s Recommended Operational Procedures (2018) does not indicate that air blanks and calibration checks must be performed before each and every blow of any kind to ensure accurate and reliable results. The ATC simply recommended that air blank tests and system calibration checks be performed.
[68] Interpreting “sample” in s. 320(1)(a) to mean “every single sample, even inadequate ones that cannot be analyzed” would not be consistent with Parliament’s intent to simplify and strengthen this statutory regime. It would make the investigation and prosecution of drinking and driving offences more complicated, without any corresponding enhancement of the reliability of test results.
[69] Reading the provision in its entirety, in its ordinary and grammatical sense as part of a coherent whole, for consistency and in accord with legislative intent, I conclude that “sample” in s. 320.31(1)(a) means only samples that are analyzed. With respect, the trial judge erred in law in concluding otherwise.
iv) Does s. 320.31(1)(a) require an air blank test and a calibration check immediately before each sample?
[70] The Respondent asks me to find that there is an implied requirement in s. 320.31(1)(a) that the air blank test and calibration check must occur immediately before each sample for the POA to apply. The trial judge was not asked to, and did not, consider whether immediacy is an implied requirement. I am nonetheless considering this submission because a Respondent is entitled to advance any argument that is available on the record on appeal to sustain the decision at first instance: R. v. Keegstra, 1995 CanLII 91 (SCC), [1995] 2 S.C.R. 381, at para. 26; R. v. S. H., 2019 ONCA 669, at para. 29.
[71] In my view, there is no implied requirement of immediacy in the provision at issue.
[72] There are no words contained in s. 320.31(1) suggesting that immediacy is required. The only language in s. 320.31(1)(a) that refers to temporality is the word “before.” An air blank test and a calibration check must be conducted “before each sample was taken.” But there is no reference to how long before. And no basis within the language of the provision to ground a conclusion that “before” means “immediately before.”
[73] Other provisions within Part VIII.1 do contain language that explicitly requires immediacy or urgency. Section 320.27 of the Code allows a peace officer to demand that a person “immediately” perform physical coordination tests; “immediately” provide samples of breath into an approved screening device; “immediately” provide samples of a bodily substance; and “immediately” provide samples of breath for mandatory alcohol screening. Section 320.28 allows a peace officer to demand samples of breath into an AI or samples of blood for analysis. The officer’s demand under this section must be made “as soon as practicable,” and the person must provide the demanded sample “as soon as practicable.”
[74] The inclusion of such language in other sections and its exclusion in s. 320.31(1)(a) is telling. Parliament is clearly aware of its ability to use language to legislate immediacy or urgency if it wants to do so. Contextually informed against the backdrop of Part VIII.1 as a whole, the absence of such language in s. 320.31(1)(a) has to be interpreted as the product legislative choice, not inadvertent omission. If Parliament had intended the air blank test and the calibration check to be conducted immediately before each sample was taken, it would have said so.
[75] The Respondent submits that a proper appreciation of the purpose of the legislation compels a conclusion that an air blank test and a calibration check are required immediately before each sample. He argues that without these, an AI could be contaminated by mouth alcohol or decalibrated from a prior sample, which could adversely affect the reliability of a subsequent test. This could result in conviction in the absence of proof beyond a reasonable doubt of the BAC, which is an essential element of the offence of “80 and over.” Which, in turn, would violate the presumption of innocence in s. 11(d) of the Charter. In the Respondent’s submission, the only way to effect Parliament’s intention of enhancing the reliability of breath results is to ensure that there can be no residual mouth alcohol in the machine, and that it is operating properly. This requires an air blank test and a calibration check immediately before each sample is received, with no intervening events that could affect the reliability of the test results. Interpreting the provision in this way would also ensure that it is compliant with Charter values.
[76] As noted, I agree that in legislating the new s. 320.31(1)(a), Parliament intended to enhance reliability of breath test results. However, there is no basis on which I can conclude that air blank tests and calibration checks conducted immediately before subject samples, with no intervening events including deficient samples, enhance the reliability of breath test results. There is also no basis on which I can conclude that the interposition of deficient samples between air blank tests, calibration checks, and subject samples may make breath test results unreliable. Again, the ATC’s Recommended Operational Procedures (2018) does not mandate immediacy to ensure accurate and reliable results. There is therefore no basis to conclude that conviction despite a reasonable doubt as to BAC is possible if all of the conditions under s. 320.31(1), with no immediacy requirement, are proven beyond a reasonable doubt. For this reason, I do not accept that interpreting the provision for consistency with Charter values requires immediacy. In any event, the Charter presumption interpretive aid is not available here because there is no ambiguity as to the meaning of the provision: Bell ExpressVu, at paras. 28-29. A proper application of principles of statutory interpretation results in a finding that there is no implied immediacy requirement in s. 320.31(1)(a).
[77] I hasten to add that on the facts of this case, the conditions set out in s. 320.31(1) as I have interpreted them offered substantial guarantees of reliability of the test results. Air blank tests before both subject samples registered 0 mg of alcohol. An air blank test after the “deficient sample” also registered 0 mg of alcohol. There was accordingly no risk of mouth alcohol contamination of the machine at the time of both subject tests. Calibration checks before both subject samples, although the first one was not immediately before the first subject sample, both gave the same result – that the machine was properly calibrated. There was an interval of 15 minutes between the two subject samples. The Respondent was in police custody and could not have imbibed alcohol that could have affected the results of either test from the time of arrest through to the end of the second subject test (and his release). And the results from the testing of the two subject samples were in good agreement. They did not differ by more than 20 mg of alcohol in 100 ml of blood.
[78] On the Respondent’s reading of s. 320.31(1)(a), the second subject test met all statutory requirements for reliability. There was an air blank test and a calibration check that occurred immediately before the second test, with no intervening events. It was only the first subject test that did not meet the statutory requirements, as the Respondent reads them. And yet, both tests yielded results within the statutory range of each other. This is the range of agreement between tests recommended by ACT to ensure accuracy and reliability. If two tests yield readings that differ by more than 20 mg in 100 ml of blood, this may signal that the AI was malfunctioning or was not operated properly for one or the other of the tests, and the QT will have to retest. That did not occur in this case. Here there was good agreement between the two samples, along with the other statutory requirements for reliability in s. 320.31(1) as I have interpreted them. This is powerful evidence that the AI was functioning properly at the time of both subject tests, and that the test results were accurate and reliable. There is no risk that the Respondent could have been convicted notwithstanding a reasonable doubt as to his BAC because there was no calibration check immediately before his first subject test.
C. Conclusion With Respect to the Crown’s Statutory Interpretation Ground of Appeal
[79] The trial judge erred in his interpretation of s. 320.31(1)(a) of the Criminal Code. The words “each sample” in this provision, properly interpreted, do not mean each and every puff of air or incomplete sample. They mean breath samples of breath that are received into an AI, and are analyzed.
[80] There is no requirement in s. 320.31(1)(a) that a system air blank test and a system calibration test be conducted immediately before each sample.
[81] The preconditions of s. 320.31(1) were satisfied. The Crown was entitled to rely on the POA to prove the Respondent’s BAC.
V. THE RESPONDENT’S ADDITIONAL ISSUE SUPPORTING ACQUITTAL – THE S. 320.32 (1) HEARSAY ISSUE
A. The Positions of the Parties
[82] The Respondent raises an additional issue in support of his acquittal, for the first time on appeal. He argues that the CQT, filed under s. 320.32(1), is inadmissible hearsay with respect to the analyst’s certification and target value of the alcohol standard used in system calibration checks. Accordingly, the Respondent says, the Crown cannot rely on the CQT to prove these statutory preconditions to the operation of the POA in s. 320.31(1)(a), and he could not be convicted.
[83] The Crown asks me not to entertain the new issue, saying that it would be prejudiced were I to do so. Proper adjudication of the issue would require an evidentiary foundation that does not exist here, and which cannot be created on appeal. The Respondent submits that I should entertain his hearsay issue, although it is raised for the first time on appeal, because it is a pure question of law that does not require an evidentiary record to be properly considered. In addition, he says that the Crown would not be prejudiced by having this issue adjudicated for the first time in this forum.
[84] The Respondent further submits that I am not bound by horizontal stare decisis to reject his argument on the hearsay issue. He argues that the decision of Smith J. of this Court in R. v. Hepfner, 2022 ONSC 6064 is not binding. Hepfner adopts the decision of the Yukon Court of Appeal in R. v. MacDonald, 2022 YKCA 7, to which - in the Respondent’s argument - all three exceptions to the requirement of horizontal stare decisis established in R. v. Sullivan, 2022 SCC 19, apply. The Crown disagrees with the Respondent’s position, submitting that I am bound by the principles of horizontal stare decisis and judicial comity to follow existing jurisprudence from courts of coordinate jurisdiction in Ontario. The Crown position is that none of the Sullivan exceptions apply here.
B. Analysis
1. Should this Court entertain the hearsay issue for the first time on appeal?
[85] Given my conclusion that I am bound by prior decisions on point, explained below, I do not accept that the CQT was inadmissible hearsay in relation to whether the alcohol standard was suitable. Consequently, the acquittal at trial cannot be sustained on this basis. I need not consider whether to engage with the Respondent’s hearsay issue on the merits for the first time on appeal.
2. Is this Court bound by prior decisions to reject the Respondent’s hearsay argument?
[86] In Sullivan, the Supreme Court clarified that trial courts should only depart from binding decisions of a court of coordinate jurisdiction in “three narrow circumstances”: Sullivan, at para. 75. These are:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[87] The first exception to the requirements of horizontal stare decisis and judicial comity applies when the authority of a prior decision is undermined by, or is inconsistent with, subsequent decisions. This can include a subsequent decision of a higher court: Sullivan, at para. 76. Second, a judge may depart from a decision where it was reached “without considering a relevant statute or binding authority,” where the missing authority “is shown to have struck at the essence of the decision”: Sullivan, at para. 77. Third, a judge may depart from an earlier decision made by a judge in exigency, without the ability to consult authority fully, such that the decision was not fully considered: Sullivan, at para. 78.
[88] I note that the Sullivan criteria speak to when trial judges may depart from otherwise binding decisions of courts of coordinate jurisdiction. In this case, I am sitting as a Summary Conviction Appeal judge. This is an intermediate appellate court, not a trial court. Does Sullivan govern whether I am bound by earlier decisions of courts of coordinate jurisdiction?
[89] In Toronto Standard Condominium Corporation. No. 1628 v. Toronto Standard Condominium Corporation. No. 1636, 2020 ONCA 612, 454 D.L.R. (4th) 126, at para. 72, a panel of five judges of our Court of Appeal considered whether to overturn its own prior jurisprudence. The Court held, at para. 72, that as a general rule it is bound to follow its own decisions, citing Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 45 as follows:
As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed in the Latin phrase stare decisis, we stand by the things that have been decided. The rule of precedent provides certainty, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly.
[90] The Court of Appeal in Toronto Standard then went on to note, at para. 73, that it may nevertheless overrule one of its own decisions. Its determination of whether to do so will begin with a consideration of whether the earlier decision was correct.
[91] Toronto Standard predates the Supreme Court’s judgment in Sullivan, which forcefully disallowed departure from binding precedent on the basis of a finding that that decision was “plainly wrong”: Sullivan, at para. 74. In other words, Sullivan precludes consideration of the correctness of an earlier binding decision, at least by courts at first instance. Moreover, Toronto Standard addresses when the Court of Appeal for Ontario may reverse itself. It does not address when a Summary Conviction Appeal Court can properly disregard a prior decision of another Summary Conviction Appeal Court.
[92] All intermediate appellate courts engage in error correction. And, as a result of the operation of vertical stare decisis in our precedent-based legal system, all intermediate courts may have some law-making role. But by dint of their position as the highest court within the province, provincial appellate courts delineate and refine legal rules and ensure their universal application: Housen, at para. 9. In so doing, provincial courts of appeal have a law-making role that goes beyond that of summary conviction appeal courts.
[93] This grounds my conclusion that, as a Summary Conviction Appeal Court judge, I do not have the latitude afforded to the Court of Appeal to consider correctness in determining whether prior decisions are binding. As Wagner C.J. concurring wrote in R. v. Kirkpatrick, at para. 179, “[h]orizontal stare decisis operates differently at leach level of court. There is more room to depart from precedent as one moves up the judicial hierarchy.”
[94] In these circumstances, although I am sitting as a Summary Conviction Appeal Court and not a trial judge, I do not consider myself at liberty to depart from Sullivan. In my view, I am not entitled to consider whether earlier decisions of Ontario Summary Conviction Appeal Courts on the hearsay issue are correctly decided. I must follow them unless I find one of the narrow Sullivan exceptions applies.
[95] There are presently four Ontario Summary Conviction Appeal Court decisions that deal with the hearsay issue raised by the Respondent: Hepfner; R. v. Dulal, 2021 ONSC 2798; R. v. Porchetta, 2021 ONSC 1084; and R. v. Bahman, 2020 ONSC 638. All of them rejected the argument now advanced by the Respondent, namely that the CQT is inadmissible hearsay in relation to the suitability of the alcohol standard. I will start by considering whether I am bound by the most recent of these, Hepfner.
[96] The decision in Hepfner was released after the hearing of this appeal. The Respondent brought an application to file further written submissions in response to Hepfner. I granted both the Respondent and the Appellant the right to do so. Both parties availed themselves of this opportunity.
[97] The Respondent submits that all three Sullivan exceptions to horizontal stare decisis apply to Hepfner. I am accordingly at liberty to depart from Hepfner, according to the Respondent. I do not agree that any of the Sullivan exceptions apply here. Most of the Respondent’s submissions amount to an argument that Hepfner adopted MacDonald, and in so doing, adopted what the Respondent says was MacDonald’s incorrect interpretation of the binding Supreme Court decision in R. v. Lightfoot, 1981 CanLII 47 (SCC), [1981] 1 S.C.R. 566. In my view, the interpretation of Lightfoot in MacDonald does not entitle me to disregard Hepfner under any of the Sullivan criteria.
[98] In relation to the first Sullivan exception, the Respondent argues that MacDonald, and by extension Hepfner, were inconsistent with Lightfoot, which is an earlier decision of a higher court. In so arguing, the Respondent misunderstands the first Sullivan criterion for departure from horizontal stare decisis. This first exception applies where the authority of an earlier decision is later undermined or overruled by, or is inconsistent with, a subsequent decision of a higher court: Sullivan, at para. 76. The Supreme Court’s decision in Lightfoot preceded MacDonald and Hepfner. These later decisions were not subsequently undermined or overruled by Lightfoot. They did not become inconsistent with Lightfoot after they were released. I may not depart from Hepfner on this basis.
[99] On the second Sullivan exception, the Respondent argues that MacDonald was decided per incuriam because it did not consider or apply a binding authority (Lightfoot). The Respondent says that as a result, MacDonald was demonstrably wrong. This submission misses the extensive and considered treatment of Lightfoot by Bauman C.J.B.C. in MacDonald at paras. 35 – 40, 50, and 75. The Respondent does not agree with MacDonald’s reading of Lightfoot, but this is not mean that the MacDonald Court failed through inadvertence or negligence to consider Lightfoot. It plainly did not fail to do so.
[100] Moreover, I understand the Respondent’s submission that MacDonald was “demonstrably wrong” to have been an allusion to the standard to find a decision per incuriam, namely that:
the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. . . . it might be shown that the missing authority affected the judgment (Sullivan, at para. 77).
It cannot be that the Respondent was inviting me to find that MacDonald was “plainly (or demonstrably) wrong.” Sullivan stands for the proposition that a judge may not depart from a binding precedent on the basis that it was “plainly wrong”: Sullivan, at para. 74. To hold otherwise would allow judges to disregard binding authority on subjective grounds because they do not agree. This is not a sufficient basis to depart from binding precedent: Sullivan, at para. 74.
[101] As Bauman C.J.B.C. did not fail to advert to or consider Lightfoot, I need not determine whether such failure struck at the essence of her decision in MacDonald. Lightfoot was not missing from MacDonald. MacDonald was therefore not decided per incuriam. Neither was Hepfner. I am not entitled to disregard Helpfner on the basis of the second Sullivan exception.
[102] Regarding the third Sullivan exception to the requirement of horizontal stare decisis and judicial comity, the Respondent acknowledges that Hepfner was not decided in exigent circumstances. However, he submits that the decision was not “fully considered” because Smith J. did not receive any submissions about MacDonald. The Yukon Court of Appeal’s decision in MacDonald was released after the hearing of the Hepfner appeal.
[103] In my view, the third ground for departing from binding authority in Sullivan is not intended to capture every situation where a jurist has not heard submissions in relation to every possible facet of a case, or every new decision released between the hearing and the judgment. It is intended to ensure that judgments made on the fly in the heat of the moment, without time to consult relevant authority or reach a considered decision, do not bind: Sullivan, at para. 78. That is not the situation here.
[104] It may have been preferable for Smith J. to have received submissions in relation to MacDonald after its release. However, this hearsay issue was argued before him, in a hearing that went over two days. It was not a new issue that arose after the hearing of the appeal. Counsel had the opportunity to file facta and make submissions in relation to it. Smith J. had his decision under reserve for some time. He had time to review submissions, consult authority, and consider his decision. Counsel for the Respondent on this appeal was counsel for the Appellant in Hepfner. He is an experienced lawyer, well-versed in drinking and driving law. I am confident that he would have made full argument on the hearsay issue before Smith J., as he did before me. He also could have pursued an application to file further written argument in Hepfner after MacDonald was released, as he did in the instant appeal. I can only assume that he did not do so because he because he thought it was not required.
[105] In addition, at the time of the hearing of the Hepfner appeal, and when the decision was released, there were three Ontario decisions from courts of coordinate jurisdiction (Bahman, Dulal, and Porchetta) that would have bound Smith J. through horizontal stare decisis and judicial comity, subject to the narrow Sullivan exceptions. I am certain that he would have heard submissions as to whether these judgments were binding on him.
[106] In these circumstances, it cannot be said that Smith J.’s decision was not fully considered. A reading of Hepfner reveals that is, in fact, fully considered. I am not relieved of the obligation to follow Hepfner on the third Sullivan exception.
[107] In sum, I see no basis for departing from Hepfner. Having determined that I am bound by it, I do not need to consider whether I am similarly bound by Bahman, Dulal, or Porchetta. I am bound by horizontal stare decisis and judicial comity to follow Hepfner’s ruling that the CQT is admissible evidence of the facts it alleges. This includes evidence of the analyst’s certification and target value of the alcohol standard used in AI system calibration checks. Consequently, the statutory pre-requisites of s. 320.31(1)(a) have been met in this case. The POA applied. I would not sustain the Respondent’s acquittal on the basis of the hearsay argument.
VI. DISPOSITION
[108] The trial judge erred in law in his interpretation of the statutory pre-requisites to the operation of the POA in s. 320.31(1)(a) of the Criminal Code. I would not uphold the acquittal on the basis of the Respondent’s hearsay argument.
[109] The Crown appeal is allowed. This is not an appropriate case to overturn the acquittal and substitute a conviction because the Respondent’s Charter applications have not been argued or adjudicated. A new trial is ordered. The Respondent is required to attend in the Ontario Court of Justice, 10 Armoury Street, Toronto, in courtroom OCJT201, on Thursday, June 22, 2023, at 9:00 a.m.
J. R. Presser J.
Released: May 18, 2023
COURT FILE NO.: CR-21-0000048-00AP
DATE: 20230518
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Appellant
– and –
DAVID GAULT
Respondent
REASONS FOR JUDGMENT
J. R. Presser J.
Released: May 18, 2023
[^1]: The defence sought exclusion of evidence in relation to the breathalyzer test results under s. 24(2) of the Charter, to remedy what he alleged were police violations of his rights under ss. 7, 8, 9, 10(a), 10(b), and 12 of the Charter. Written Charter application materials were filed by both parties and evidence was heard in relation to the Charter issues. However, there was no oral argument and no determination of the Charter issues. The legal issue which ultimately led to Mr. Gault’s acquittal was argued and decided before submissions in relation to the Charter were reached.
[^2]: Unbeknownst to counsel and the trial judge, R. v. Cousins-Tremblay, 2020 ONCJ 101, dealt with the same legal issue. In Cousins-Tremblay, Schwarzl J. held that rejected, aborted, or terminated samples are not “samples” within the meaning of s. 320.31(1)(a), and that there is no requirement of air blank tests or system calibration checks immediately before each sample. Judgment in Cousins-Tremblay was released on February 13, 2020, before this trial in July 2020. It may be argued that Cousins-Tremblay was binding on Justice Cole as a trial judge in a court of coordinate jurisdiction: R. v. Sullivan, 2022 SCC 19.
[^3]: Where videotapes consist of statements, and it is the statements that have evidentiary value, these statements may be hearsay when the deponent is unavailable for cross-examination. This was the case in B. (K.G.). However, where videotapes depict events (like events at a crime scene), they will typically not be hearsay.
[^4]: This argument seems to run counter to the Respondent’s concession, discussed earlier, that “sample” within the meaning of s. 320.31(1)(a) does not include inadequate or incomplete samples. However, the Respondent’s argument on appeal comprehended both of these positions.