R v Hanna, 2021 ABQB 68

Court of Queen’s Bench of Alberta Citation: R v Hanna, 2021 ABQB 68 Date: 20210127 Docket: 170618169S2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ryan Kevin Hanna Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S.E. Richardson _______________________________________________________ Appeal from the Conviction by The Honourable Judge M.S. Hayes-Richards Convicted on the 26 th day of June, 2019 (Docket 170618169P1, 2019 ABPC 157 )

Introduction [1] The appellant was arrested on May 17, 2017 and ultimately convicted of operating a motor vehicle with more than theproscribed amount of alcohol in his body (s 253(1)(

b) Criminal Code). [2] As a result of an earlier

summary conviction appeal, the matter was returned for a retrial. The retrial began on February 11,2019, and the conviction that is the subject of the present appeal was entered on June 26, 2019. This second trial included a pre-trialapplication on a claimed s 10(

b) Charter breach. [3] The retrial was complicated by the intervening proclamation of Bill C-46. This legislation was a wholesale revision of thecriminal driving offences in the Criminal Code. Bill C-46 came into effect on December 18, 2018. [4] The appellant was charged under s 253(1)(b), 19 months before Bill C-46 came into effect. His trial began in February 2019,after Bill C-46 came into effect. This is the genesis for two of the three grounds of appeal. [5] The appellant also appeals the finding of the learned trial Judge on his Charter complaint.

That ground of appeal is notaffected by the changes occasioned by Bill C-46. [6] The trial decision is found at 2019 ABPC 157. The voir dire decision on the right to counsel was given orally at an earlierdate. Grounds of Appeal [7] The appellant advanced three discrete grounds of appeal:

a) The trial Judge erred in finding that his right to counsel was not infringed;

b) The trial Judge erred in her application of the presumption of accuracy and in particular erred in finding i. that viva voce evidence of the qualified technician was admissible to establish that thealcohol standard was certified by an analyst; and ii. that the specific evidence of Cst. Sergeant, even if admissible, established beyond areasonable doubt that the alcohol standard was certified by an analyst;

c) The trial Judge erred in finding that the presumption of identity remained available to the Crown, notwithstanding its repeal. Standard of Review [8] Factual findings made by a trial Judge are owed deference. However, the question of whether the facts as found, amount to abreach of a Charter protected interest is a legal one, reviewable on a standard of correctness. (R v Cortes Riveria, 2020 ABCA 76 at para18, aff’d by 2-2 SCC 44, R v GTD, 2017 ABCA 274 at para 6). This standard of review applies to the first ground of appeal. [9] The second ground of appeal raises a question of mixed fact and law.

The standard of review for a question of mixed fact andlaw is “palpable and overriding error” unless the trial Judge erred in the characterization and application of a legal principle to the facts,in which case it may be an error of law and subject to the standard of correctness: Housen v Nikolaisen 2002 SCC 33 at para 37. In thiscase, the trial Judge’s

interpretation of s 320.31(1)(a)CC flows into the second ground of appeal, which raises a question of law and thestandard of correctness applies: R v Kaler, 2019 ABQB 357 at para 18, citing R v Shepherd, 2009 SCC 35 at para 20. [10] The third ground of appeal engages the question of whether the presumption of identity operates prospectively orretrospectively. This is a question of law, reviewable on a standard of correctness. (R v Ali, (SCC), [1980] 1 SCR 221at 232). Analysis A.

Right to Counsel [11] On the Charter complaint, the appellant argued that once the trial Judge found that the officer knew the appellant was unableto contact his counsel of choice, this knowledge triggered duties on the officer to take additional steps to afford the appellant the abilityto contact his counsel of choice. [12] Counsel on the appeal argued that it was open to the officer, on the evidence, to have provided the appellant with a call backnumber to the station to pass along to his counsel of choice so that they could return his message, or alternatively, to give the appellanthis cell phone while he was in the phone room at the police station to await a return call from his counsel.

Mr. Smith was clear that hewas not arguing there is an obligation on police in every circumstance to take these steps, but rather, on the facts as found by the trialJudge, these additional steps were required for the police to satisfy their implementational duty. [13] He argued that where, as in this case, the police were aware that a detainee wants to contact a specific lawyer, they are

required to offer assistance even where the detainee does not request assistance. [ 14 ] The Crown argued that the trial Judge made no error on the application of her findings of fact to the law. [ 15 ] While the appellant stated that his argument is based on the facts as found by the trial Judge, that is not correct.

In fact, his argument ignores some findings of fact, imports facts that were expressly not found by the trial Judge and draws inferences the trial Judge declined to draw. [ 16 ] The appellant and the investigating officer both testified on the voir dire . [ 17 ] The trial Judge found the following facts. When the officer first placed the appellant in the phone room and explained the use of the phone, the phone books, the iPad and the posted Legal Aid number, the appellant asked the officer for his cell phone so he could retrieve his lawyer’s phone number. This was at approximately 2:30 a.m.

The cell phone had been stored in a “personal property” location when processing the appellant at the station, as is done with the personal property of all detainees. The officer retrieved the cell phone and assisted the appellant by writing the number on a sticky note so he could take the number into the phone room. [ 18 ] A short time later, the appellant exited the phone room and advised the officer that he left a message on his lawyer’s answering machine and that he had called Legal Aid but the line was busy. The officer told the appellant to return to the phone room and keep trying.

He did not direct or prompt the appellant to proceed with either of the two options the appellant had already pursued. [ 19 ] The officer thought the busy signal with Legal Aid was unusual so the officer tried to call the number as well. He also received a busy signal. He then turned his attention to the appellant who was now in the phone room and talking on the phone. Upon observing the officer’s gaze, the appellant offered a “thumbs up” motion and continued to speak into the phone.

The trial Judge found this to be an indication from the appellant that he had reached a lawyer. [ 20 ] The appellant exited the phone room a second time, without any prompting from the officer. The trial Judge found, as a fact, that the officer asked him if he “was done”, and the appellant stated “Yes, I am and he told me to take the test”.

The officer had no way of knowing which of the appellant’s two previous options for contacting counsel had been engaged. [ 21 ] The trial Judge did not accept the appellant’s testimony that after the second time he exited the phone room, the officer asked if he had spoken to a lawyer, and he replied “I think so, but I am not satisfied with the advice I received”. The trial Judge also expressly disavowed the appellant’s testimony that when he came out of the phone room this second time he asked the officer if he could use the iPad to try to locate his lawyer’s home phone number and the officer then said “Why?

You’ve already spoken to a lawyer and because you’ve spoken to a lawyer you have to make a choice”. [ 22 ] The appellant argues that given the officer knew the appellant wanted to call a particular lawyer, and had called and left a message, and because the officer knew the appellant was unable to leave a call back number for the lawyer to return the call, that in these circumstances the officer had an obligation to either, give the appellant a call back number to the station, or give the appellant his cell phone to facilitate the call back. [ 23 ] All this ignores the fact that when the appellant was in the phone room the first time, he came out and told the officer that he placed two calls, one to his counsel of choice, where he left a message, and one to Legal Aid, which line was busy.

These twin choices were open to the appellant to make in attempting to obtain legal advice. Neither of these two choices was informed by the officer pointing him in any specific direction. [ 24 ] This is precisely the situation that was dealt with in R v Willier , 2010 SCC 37 .

The appellant argues that Willier is distinguishable from the facts of this case because “any satisfaction that the officer may have assumed attached to the appellant’s conversation with Legal Aid, only arose after the appellant left a message, which message had no realistic chance of being returned, with initial counsel of choice.” [ 25 ] This is not an accurate reflection of the facts as found by the trial Judge. The trial Judge accepted the officer knew before the appellant went into the phone room the first time that he wished to call a specific lawyer.

The officer knew that when the appellant came out of the phone room the first time he had tried to call that lawyer, as well as Legal Aid. The officer knew that both options were unsuccessful . He sent the appellant back into the phone room with the instruction “keep trying” without any reference to either of the two options the appellant previously adopted on his own. [ 26 ] While in the phone room, the officer received non-verbal communication from the appellant that he had been successful in his task, contacting counsel.

When the appellant came out of the phone room a second time, the trial Judge found that he asked a general question “are you done” to which he replied “Yes. I am and he told me to take the test”. [ 27 ] On these facts, and the information known to the officer, it was open to the officer to conclude that the appellant had successfully contacted counsel, and that he was satisfied with that opportunity. [ 28 ] The officer initially assisted the appellant in obtaining the contact details for counsel of choice from the appellant’s cell phone.

The question “are you done” in these circumstances was a clear indication by the officer that he was available to provide further assistance in the event that the appellant was not done and required further time, attempts or information to contact counsel.

None was requested. [ 29 ] The appellant argues that it would be a perverse ruling to find that a detainee who left a message with no call back number and then refused to proceed further was more diligent in attempting to reach counsel than was the appellant who made repeated calls to both counsel of choice and Legal Aid. [ 30 ] That argument ignores the fact that in this case, the appellant chose, of his own volition, to call the Legal Aid number after leaving a message for his counsel of choice. It also ignores the officer’s direction to “keep trying”, unadorned by either of the two

options chosen by the appellant. [31] On the basis of these findings of fact, the trial Judge concluded that the appellant was provided a reasonable opportunity tocontact counsel and the appellant was not duly diligent in exercising his right to counsel.

Specifically, she found that if the appellant hadmentioned to the officer that he wanted a call back number, or that he wanted his cell phone so his counsel of choice could call him back,the officer would have accommodated these avenues of contact. [32] The issue to be determined is not whether there was more that the police could have done to assist the appellant to contact hiscounsel of choice, rather the issue is whether the actions taken by the officer to facilitate contact with counsel of choice were reasonable. [33] In R v Willier, 2010 SCC 37, the Supreme Court held that the obligation on police is to facilitate a reasonable opportunity fora detainee to contact counsel.

These police obligations are contingent upon the detainee’s reasonable diligence in attempting to contactcounsel (see para 33). Unless the detainee tells police that the advice received was inadequate, or that there were other obstacles tocontacting counsel of choice, the police may reasonably assume that the detainee is satisfied with their right to counsel. If counsel ofchoice is not available, detainees have the right to refuse to speak with another lawyer. However, this is not what occurred in the presentcase.

The appellant was unable to contact his counsel of choice and he chose, on his own, to call Legal Aid instead. When asked by theofficer if he was “done” the appellant replied “Yes, I am and he told me to take the test”. The appellant offered no information thatrequired the officer to act further to ensure the appellant’s right to counsel was affected. [34] The appellant was entitled to call any counsel in the privacy of the phone room. He made that choice without any promptingby the officer.

Having made that choice and having expressed no dissatisfaction with either his choice, or with the advice he received, hecannot now claim that his right to counsel was frustrated.

In R v McKay, 2014 ABQB 70, the Court held that a detainee’s choice to callduty counsel and not ask for any other lawyer thereafter, and when no dissatisfaction was expressed, does not impose on the police anobligation to take any further steps, as the detainee was not reasonably diligent in his attempt to access counsel of choice. (para 52-57) [35] The findings of fact were based on a credibility assessment and those findings are entitled to deference.

On the facts as foundby the trial Judge, her conclusion that the officer had satisfied his implementational obligations and there was accordingly no breach ofthe appellant’s right to counsel was correct. Principles of Statutory

Interpretation [36] The second and third issues deal with the

interpretation of Bill C-46. This requires the application of the principles of statutoryinterpretation. [37] In Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, the Supreme Court adopted the modernapproach to statutory

interpretation. The words of

an Act are to be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (para 21). [38] The Supreme Court in R v Alex, 2017 SCC 37, a decision which dealt with the

interpretation of the previous criminal drivinglegislation, said: (at para 31) This Court has repeatedly observed that plain meaning alone is not determinative and a statutory

interpretation analysis is incompletewithout considering the context, purpose and relevant legal norms: (citations omitted) this is necessary because: Words that appear clearand unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latentambiguity…is a logical result of the modern approach to

interpretation. [39] The Supreme Court has also repeatedly endorsed the following passage from Ruth Sullivan, author of Sullivan on the Construction of Statutes (6th ed. 2014) at 2.9: At the end of the day…the court must adopt an

interpretation that is appropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with the legislative test; (b)its efficacy, that is, its promotion of legislative intent; and (

c) its acceptability, that is, the outcome complies with accepted legal norms;it is reasonable and just. [40] The Alberta Court of Appeal in Alberta v ENMAX Energy Corporation, 2018 ABCA 147, leave to appeal ref’d (SCC), also emphasized the importance of context when interpreting a statutory provision and the need to consider the purpose ofthe statutory provision in the context of the legislative scheme.

The Court said at paragraph 70: “The modern rule of statutoryinterpretation requires courts to take a unified textual, contextual and purposive approach to this task: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014) [Sullivan] r 7-8. A court must consider not only the textualwording of the statutory provision in dispute but also the purpose of the provision and all relevant context. That includes the legislativescheme of which the provision forms a part.” (emphasis in original) [41] The statutory

interpretation of Bill C-46 is made easier by Parliament’s decision to append two documents to the legislation.The first is the

preamble, which is a formal expression of the Parliament’s intention in enacting the new legislation. The

preamble states: • Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year, • Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances, • Where it is important to deter people from driving while impaired by alcohol or drugs,

• Where it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired driving and exercise investigative powers in a manner that is consistent with the Charter , • Whereas it is important to simplify the law relating to the proof of blood alcohol concentration, and • Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving. [ 42 ] The Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46), May 2017, repeats the objective of the new legislation, saying: “the overall intention is to make the investigation and prosecution of impaired driving offences simpler while respecting the Charter rights of Canadians”.

The Legislative

Summary also articulated that the new legislation is designed to “facilitate the proof of blood alcohol concentration”. [ 43 ] Drinking and driving trials consume a large amount of court resources. Throughout the years, there have been many technical, constitutional and novel challenges to existing legislative schemes. The development of the law in this area resulted in increasing complexity and, at times, conflicting lines of jurisprudential authority. In expressing the intention to simplify the law relating to the proof of BAC, Parliament proceeded down a well trodden path.

In R v Alex , 2017 SCC 37 , the Supreme Court, in commenting on a previous legislative incarnation of drinking and driving legislation said “To address the challenges posed by the large number of drinking and driving offences, Parliament has, over the years, taken steps to simplify and streamline the trial process.” (para 2). Bill C-46 is just a further step in that process. [ 44 ] The

Interpretation Act , RSC 1985, c I-21 , also informs statutory

interpretation. Specifically, s 3 dictates that the

preamble of

an Act is intended to assist in explaining its objectives.

Section 43 deals with the effect of the repeal of legislation and how to deal with cases caught in the transition between two different legislative schemes. [ 45 ] Against this backdrop, I will turn to the issues of the presumption of accuracy and the presumption of identity. B. Presumption of accuracy i. What evidence is required to prove that the alcohol standard was certified by an analyst? [ 46 ] The presumption of accuracy is concerned with proof of the BAC obtained by an approved instrument.

Since BAC results are obtained by use of a scientific instrument, it is critical that proper testing criteria are employed when operating the instrument. Parliament has seen fit to mandate the testing criteria in the Criminal Code , making compliance with these statutory provisions a condition precedent to relying on the presumption. [ 47 ] Before Bill C-46, the presumption of accuracy was found in s 258(1)(g). Bill C-46 maintained the presumption, since proof of BAC remains the product of test results from an approved instrument. However, the new regime altered the criteria for relying on the presumption.

Section 320.31(1) now includes proof of a system calibration check, the results being within 10% of a target value of an alcohol standard, and that alcohol standard must have been “certified by an analyst”. It is proof of the “certified by an analyst” that anchors this ground of appeal. [ 48 ] The new legislative scheme permits proof of this condition by way of a certificate from the analyst (s 320.32(1)) or by way of certificate from the qualified technician who obtained the breath samples (s 320.32(1)).

There is no express evidentiary provision in the new regime that permits proof of the certification of the alcohol standard by an analyst by the viva voce testimony of the qualified technician who obtained the breath samples. [ 49 ] The appellant argues that the viva voce testimony of the qualified technician in this case, to the effect that he looked at a chart on the wall in the breath testing room and noted that the lot # of the alcohol standard he used had been “certified by an analyst”, is “classic hearsay” and as such is inadmissible. [ 50 ] Under the repealed regime, the Crown had to prove that the alcohol standard used by the qualified technician was “suitable for use”.

The repealed legislation contained a clear statutory exception to the hearsay rule, as s 258(1)(

g) permitted proof of the “suitable for use” element through the certificate of the qualified technician. Bill C-46 altered the “suitable for use” requirement for the alcohol standard to one that was “certified by an analyst” and was silent on the ability to prove such certification through the testimony of the qualified technician. [ 51 ] The appellant argues that proof of the “certified by an analyst” element should be proved by tendering the certificate as permitted by s 320.32(1) or alternatively, by the viva voce testimony of the analyst. [ 52 ] The Crown relies upon the

summary conviction appeal decision of Justice Ho, R v Goldson , 2019 ABQB 609 . [ 53 ] Goldson post dates the trial decision in this matter so was not available to the Court at the trial level. Leave has been granted by the Court of Appeal. No decision has yet been rendered. [ 54 ] Goldson is based on precisely the same factual scenario: At the trial, the Crown did not tender the certificate of qualified technician or the certificate of analyst. Instead, the Crown called Constable McKay to provide viva voce testimony…[to the effect]…that an analyst certified the alcohol standard.

He referred to the certificate of analyst on the wall in the RCMP detachment to make this determination. (see para 9 - 11) [ 55 ] The

Summary Conviction Appeal Court in Goldson concluded that the legislative intention of Parliament in enacting Bill C- 46, the overall scheme and object of the new legislation and appellate jurisprudence in relation to the prior statutory regime, whether the hearsay rule precluded the qualified technician testifying about whether the alcohol standard was “suitable for use”, all combine to lead

to the conclusion that hearsay evidence is admissible to prove that the alcohol standard was “certified by an analyst”.

I agree with thisreasoning and this conclusion. [56] Where the intention of Parliament is clearly stated as the simplification of the investigation and prosecution of alcohol drivingoffences and where Parliament maintained the presumption of accuracy which has been part of the criminal driving regime since the1960s, it cannot be that Parliament also intended to place a further evidentiary burden on the Crown; one that did not exist under the oldregime. [57] It is correct that evidence from the qualified technician as to whether the alcohol standard used was “certified by an analyst” ishearsay.

However, this type of hearsay has been repeatedly determined to be an exception to the rule against admissibility (R v Ware(1975), 30 CRNS 308 (ONCA) at 325, R v Lightfoot, (SCC), [1981] 1 SCR 566 at 574-575, R v Harding (ONCA) at 11-12).

These decisions reflect the prior regime where the alcohol standard had to be proven to have been “suitable foruse”, while the new regime requires proof that it was “certified by an analyst”. [58] The appellant argues that there is a higher evidentiary threshold for “certified by an analyst” than “suitable for use” because,in simplifying the proof of blood alcohol concentration, Parliament also eliminated the defence of evidence to the contrary.

I disagree.This new wording is an attempt to clarify the ambiguity and subjectivity that existed in the old legislation and does not impose anadditional evidentiary hurdle to prove the prerequisites to the presumption of accuracy.

Parliament’s intention in this new legislation isexpressly to “simplify the law relating to the proof of blood alcohol concentration” and in so doing, they statutorily mandated that “ifsamples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of theanalyses of the samples are conclusive proof of the person’s blood alcohol concentration” subject to the presumption of accuracy (s320.31(1)). [59] As well, the existing statutory regime contains protections to guard against the dangers of hearsay evidence.

The Court inGoldson held that “a qualified technician’s viva voce evidence [on the issue of the certification of the alcohol standard by an analyst] isinherently reliable and presents minimal dangers” (para 63]. I agree. [60] As well, any danger associated with this hearsay are mitigated by s 320.34(1)(

e) which imposes a legal obligation on theCrown in every case to disclose a copy of the certificate of analyst that the qualified technician relied upon. [61] Also, this hearsay is admissible where the qualified technician is not called as a witness and the Crown simply tenders theirevidence by way of a certificate under ss 320.32(1) and (2).

It is logically inconsistent that Parliament intended to permit this hearsayevidence if tendered through a certificate of the qualified technician but not via their viva voce testimony. [62] The analysis from Goldson was adopted by Justice Loparco in R v Savage, 2020 ABQB 618, on the same point, that the“addition of the words ‘certified by an analyst’ to the

section [320.31(1)(a)] do not require anything other than the technician’s testimonyor the Certificate of Analyst signed by the technician”. (para 89) [63] Finally, the appellant argues that the Crown can discharge this evidentiary hurdle by tendering either, the certificate ofanalyst, as permitted by ss 320.32(1) and (2), or call the analyst as a witness. [64]

Section 320.32(3) allows for the party against whom a certificate (of analyst) is produced to apply to the Court for an orderrequiring the attendance of the person who signed the certificate for the purposes of cross-examination. A requirement that the Crowntender into evidence these certificates would come with an opportunity to require the analyst to be available for cross-examination. Theanalyst would have no connection to the investigation. They would have nothing germane to contribute to the fact-finding process of thetrial.

They would likely have no specific or independent memory of the certification of any specific lot number of the alcohol standardand would only be able to testify about the scientific method and practice that went into their work certifying lots. Their evidence wouldyield little beyond what they have already certified to. Were the Crown required to tender the certificate of analyst, there exists thepotential to prolong the time required for trial by increasing the number of required witnesses, increase the complexity of the trialprocess without any concurrent benefit to the truth-seeking function.

Both of these outcomes are contrary to the stated intention ofParliament in Bill C-46. The suggestion by the appellant that the certification of the alcohol standard could also be proven by the Crowncalling the analyst in the first instance results in the same discordant outcome. [65] The new condition precedent to engaging the presumption of accuracy in relation to the certification of the alcohol standardthat was used by the qualified technician can be proven by the viva voce evidence of the qualified technician. The decision of the trialJudge was correct. ii.

Was the evidence in this trial capable of proving that the alcohol standard was certified by an analyst? [66] The second argument advanced by the appellant on the presumption of accuracy issue is that even if the Crown can rely uponhearsay testimony on whether the alcohol standard was “certified by an analyst”, the evidence in this particular case does not meet thethreshold of proof of this issue beyond a reasonable doubt.

I disagree. [67] In support of this argument, the appellant relies upon a portion of the cross-examination of the qualified technician that isreproduced in the written decision of the trial Judge. In this exchange, he argues that there is a reasonable doubt about whether theanalyst who certified the alcohol standard was “designated by the Attorney General” as required by s 320.11. [68] The trial Judge found that the exchange was confusing, which led to a clear misunderstanding between defence counsel andthe witness. This misunderstanding was cleared up later in the exchange.

The question from counsel used the phrase “certified thecanisters” and the witness clearly was answering the question “who changed the canisters” in the approved instrument. The trial Judgewho was present to hear the whole of this evidence found the appellant’s argument “did not logically flow from the evidence”. She foundthat counsel and the witness were “speaking at odds” in part due to counsel not using the word “analyst” when he was asking thesequestions. She found that “it cannot be concluded from this exchange that the officer did not know that the analyst was designated by the

Attorney General. All that can be taken from this exchange is that the officer knows the analysts are scientists, not employees of EPS”. She concluded that “Parliament placed a burden on the qualified technician to ensure that the system calibration test used an alcohol standard certified by an analyst. Given that evidence I heard from the qualified technician, I have no doubt that is what he did.” [ 69 ] The decision of the trial Judge was correct. C.

Does the repeal of the presumption of identity operate retrospectively such that it is not available at trial for charges that predate December 18, 2018? [ 70 ] The appellant argues that the presumption of identity is procedural in nature and therefore its repeal operates retrospectively. As such, it is not available to the Crown as an evidentiary shortcut to the prosecution of a s 253(1)(

b) charge that occurs after December 18, 2018. He argues that it is open to the Crown to use other evidence to prove the BAC at the time of driving, specifically by calling an expert to extrapolate BAC from the time of testing back to the time of driving. [ 71 ] The Crown favours the analysis of Justice Henderson in R v McManus , 2019 ABQB 829 on this issue. Specifically, the Crown argues that the combination of Parliament’s intention in enacting Bill C-46, s 43 of the

Interpretation Act , as well as the weight of existing

summary conviction decisions across Canada to date on this issue, lead to the conclusion that, despite its repeal, the presumption of identity remains available to the Crown in those cases where charges arose before December 18, 2018. [ 72 ] Section 32(2) of Bill C-46 specifically deals with the repeal of the presumption of accuracy and how its repeal operates in the prosecution of impaired driving charges. The new legislation is silent with respect to the presumption of identity.

Since Parliament permitted the Crown to rely upon the presumption of accuracy, with some changes to the conditions precedent to such reliance, the appellant argues that the absence of any mention of maintaining the presumption of identity gives support to his argument that Parliament meant to eliminate it for all offences, both pre and post December 2018.

I disagree. [ 73 ] One obvious reason for the legislative silence on the presumption of identity is the recasting of the offence of driving with a proscribed amount of alcohol in the body. [ 74 ] The appellant was charged under s 253(1)(b), “operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood”. This is the wording of the repealed charging section. It is functionally impossible to ever obtain the BAC of a driver at the time of driving. As a result, Parliament legislated the presumption of identity.

This presumption held that where certain prerequisites were met, including that the samples of breath were obtained within two hours of the time of driving, the result at the time the samples were taken was presumed to be identical to the BAC at the time of driving. [ 75 ]

Section 320.14(1)(

b) is the new charging

section that is equivalent to the repealed s 253(1)(b).

Section 320.14(1)(

b) makes it an offence to have more than 79 mg of alcohol in 100 ml of blood within two hours of driving. This new offence does not require a presumption of identity since the focus is on the BAC at the time the samples are taken, and not the BAC at the time of driving. The new offence

section removes the “at the time of driving” element and replaces it with being over the proscribed level “within two hours after ceasing to operate a conveyance”. [ 76 ] Viewed in this context, any mention of the presumption of identity in the new legislation is unnecessary and superfluous. [ 77 ] A review of the intention of Parliament also leads to the conclusion that the presumption of identity remains available to the Crown for events that occurred before December 18, 2018, notwithstanding its repeal. [ 78 ] The presumption of identity is a procedural provision not a substantive one.

The Supreme Court has determined that procedural amendments are presumed to apply to all rights prospectively ( R v Dineley , 2012 SCC 58 , para 10 and 11 ). This presumption against retrospectively, however, is rebuttable where there is a clear intention by Parliament to the contrary: Dineley , para 10 . [ 79 ] There is no legislative comment on the presumption of identity in the new legislation but for its repeal. As indicated above, the new offence

section does not require any presumption of identity. [ 80 ] The appellant argues that a finding that the presumption of identity does not operate retrospectively is in keeping with the elimination of the evidence of the contrary defence, is in keeping with Charter values and would not preclude the Crown from prosecuting these offences. On this last point, it is correct that there exits an evidentiary route to prosecuting offences under s 253 without relying upon the presumption of identity.

The absence of the presumption of identity means that the Crown would have to secure and retain an expert in the extrapolation of BAC in the human body. The expert would have to undertake and complete some scientific calculations and prepare a report, which would have to be disclosed along with their credentials (s 657.3) All experts expose the court process to a potential Mohan voir dire . An expert witness offering complicated, scientific evidence, would be added to the prosecution witness list.

Calling such evidence was often a route taken by the Crown under the repealed regime, in serious cases where breath samples were taken outside of two hours, thus eliminating the presumption of identity.

This process is expensive, time consuming, complicated and resource intensive. [ 81 ] While none of this complexity is a reason on its own to ground a finding that the intention of Parliament was to avoid this expense, it is inconceivable that, in rewriting the criminal driving provisions of the Criminal Code , where the stated intention includes, to “simplify the law relating to the proof of blood alcohol concentration” (from the

preamble to Bill C-46) and “ to make the … prosecution of impaired driving offences simpler” (from the Legislative Background to the bill) that Parliament intended to leave a separate class of cases, based only on the accident of timing, to which this resource intensive procedure applies: that is to say, only those offences that occurred before Dec 18, 2018 and were prosecuted after that date. There is no logical reason to have this separate category of prosecutions. [ 82 ]

Section 43 of the

Interpretation Act states: where an enactment is repealed the repeal does not affect the previous operation of

an enactment so repealed or anything duly done or suffered thereafter. The repeal also does not affect any offence committed against or in contravention of the provisions under the enactment so repealed and also does not affect any investigation or legal proceeding instituted as if the enactment had not been so repealed. [ 83 ] The application of this

section gives further support to the conclusion that the presumption of identity remains available to the Crown in the prosecution of charges that arose before its repeal. [ 84 ] This issue has been litigated across the country at the

summary conviction appeal level, and without exception, appellate courts have found that the rules of statutory

interpretation lead to the inevitable conclusion that the repeal of the presumption of identity operates prospectively. [ 85 ] In R v McManus , 2019 ABQB 829 , Justice Henderson sitting as a

summary conviction appeal Justice, addressed this very issue. This decision was issued on October 28, 2019, so neither the trial Judge nor counsel at trial had the benefit of this decision in June 2019 when the trial court convicted Mr. Hanna. [ 86 ] In McManus , Justice Henderson found that the combination of the principles of statutory

interpretation, the application of the

Interpretation Act , the context of the Bill C-46 amendments to the criminal driving regime and the stated intention of Parliament combine to lead to the conclusion that the repeal of the presumption of identity operates prospectively, and does not apply to charges laid before December 18, 2018, under the old s 253 - 258 regime of the Criminal Code . [ 87 ] Counsel for the appellant acknowledged McManus but urged the court to favour the reasoning in R v Shaikh , 2019 ONCJ 157 , from the Ontario Court of Justice. Shaikh is a trial level decision and was one of the first written decisions dealing with the repeal of the presumption of identity. The court in Shaikh found the repeal of s 258(1)(

g) did operate retrospectively and therefore, any prosecution under s 253(1)(

b) occurring after December 18, 2018 did not enjoy the presumption. This decision was issued in March 2019 and was not appealed. However, subsequent appellate decisions in Ontario have held, contrary to the decision in Shaikh , that the repeal of the presumption of identity operates prospectively. In fact, the Ontario Superior Court of Justice, sitting as a

summary conviction court, in R v Persaud , 2020 ONSC 3413 , repudiated the reasoning in Shaikh , saying “For the reasons set out below, I find that Shaikh was wrongly decided and should not be followed.” ( Persaud , para 21 ) [ 88 ] The repeal of the presumption of identity operates prospectively. The trial Judge was correct. Conclusion [ 89 ] The appeal is dismissed. Heard on the 17 th day of September, 2020. Dated at the City of Edmonton, Alberta this 27th day of January, 2021. S.E. Richardson J.C.Q.B.A. Appearances: Michael Dunn for the Crown Steve Smith for the Accused