R. v. Unger, 2019 MBPC 66

CITATION: R. v. Unger, Ronald, 2019 MBPC 66 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen, ) ) ) Manoja Moorthy for the Crown, - and – ) ) ) ) UNGER , Ronald Jacob, ) ) Melanie Wire for the Accused, Accused ) Judgment delivered: ) October 29, 2019 Mary Kate Harvie, P.J. INTRODUCTION [ 1 ] As a result of an incident on July 14, 2018 the accused, Ronald Jacob Unger, is charged with driving impaired and driving with a blood alcohol level over .08 contrary to the Criminal Code of Canada (“ Criminal Code ”) . The trial in this matter commenced on April 23, 2019.

In the interim, on December 18, 2018 an Act to Amend the Criminal Code known as Bill C-46 (“C-46”or the “Act to Amend” ) was proclaimed, repealing Sections 249 - 261 of the Criminal Code . This is a so-called “transitional case”, the offences having been committed under the previous Criminal Code provisions but prosecuted after the repeal of these provisions. At issue is whether, for those transitional cases, the provisions under former Criminal Code s. 258 dealing with the “presumption of identity” survives the legislative changes brought into effect by Bill C-46.

THE EVIDENCE AT TRIAL [ 2 ] The evening of July 14, 2018, members of the Winnipeg Police Service were participating in a special project designed to detect impaired drivers. A check-stop location was set up in the vicinity of the Cavalier Hotel in Winnipeg, Manitoba. [ 3 ] Officers observed the accused exit the Cavalier Hotel, enter his pick up truck and drive it to an area in front of the hotel’s beer vendor. Although there was no issue with the manner of driving, officers testified that the accused parked in front of the vendor at an unusual angle making it difficult for other vehicles to pass.

As a result, members of the Winnipeg Police Service approached the vehicle, detected an odor of liquor on the accused, and noted that he had blood shoot eyes and was speaking slowly. The officer testified that he had the requisite suspicion to make an Approved Screening Device (“ASD”) demand and did so just after 9:04 p.m. The accused was cooperative and provided an ASD breath sample which registered a fail. The accused was then arrested and taken to the “check- stop” van which was in the immediate vicinity as part of an impaired driver detection program.

The accused provided breathalyzer samples at 9:45 p.m. and 10:07 p.m., both of which registered 130mg of alcohol in 100 millimetres of blood. His wife was contacted and he was ultimately released after being provided the appropriate paperwork. POSITION OF THE PARTIES [ 4 ] Crown counsel called no other evidence and seeks to rely on the “presumption of identity” from former Criminal Code s. 258 which presumes that the accused’s breathalyser readings at the time of the breathalyzer test are proof of his blood alcohol concentration at the time of the driving.

The accused argues that because s. 258 of the Criminal Code has been repealed by the Act to Amend, the evidentiary “short cut” previously available to the prosecution under the now repealed Criminal Code sections now no longer exists. Having failed to tender a report of a toxicologist or to call viva voce evidence as to the accused’s blood alcohol concentration (BAC) at the time of driving, she argues that the accused must acquitted.

LEGISLATIVE AMENDMENTS [5] Prior to the recent amendments, previous Criminal Code Sections 249-261 created a number of driving related offences andestablished a number of evidentiary presumptions designed to streamline drinking and driving trials. One of these evidentiary shortcutsbecame referred to as the “presumption of identity” and allowed the Court to presume that an accused’s (BAC) at the time the breath testwas that at the time of driving. This was important because the offence created by Criminal Code s. 253(1)(

b) focused on the BAC at thetime of driving. Under the changes enacted by Bill C-46, it is now an offence to be “at or over” 80 milligrams of alcohol in 100millimetres of blood within two hours of driving.

Therefore, it is no longer necessary for the Crown to establish the concentration ofalcohol in the offender’s blood at the time of driving, rendering the presumption of identity unnecessary in prosecutions under the newlegislation. [6] Unfortunately, the Act to Amend is silent about the availability of the presumption of identity in “transitional” cases, despitethe fact that those responsible for the drafting of the legislation knew or ought to have known that the transitional period is one thatrequires specific attention.

A review of the jurisprudence following each Criminal Code amendment shows that considerable litigationresults when the application of new laws during the “transitional” period are not clearly addressed by the legislation: See R. v. Ali, (SCC), [1980] 1 S.C.R. 221 (S.C.C); R. v. Dineley, 2012 SCC 58 , [2012] 3 S.C.R. 272. [7] Adding to the confusion, s. 32(2) of the Act to Amend specifically addresses the “presumption of accuracy”, a companionprovision contained in the previous legislation, confirming that it survives for “transitional” cases.

It is puzzling, and frankly unhelpful,that the Act to Amend specifically addresses one legislative presumption while remaining silent on the presumption of identity. [8] In a recent decision respecting legislative changes to the jury selection process, Martin J. expressed his frustration over thelack of clarity in the new provisions regarding their applicability during the transitional period, and whether those provisions shouldapply retrospectively or prospectively: See R. v.

Ismail et al. 2019 MBQB 150 (Man QB): Despite being readily foreseeable that the repeal would be contentious, and challenged in court, Parliament did not clarify by expresswording whether the repeal of peremptory challenges was to apply retrospectively to all jury cases in the system, or prospectively only tocharges filed after September 19, 2019.

Had Parliament done so, the retrospective/prospective issue would have been moot; certainty andfinality would have been assured. [9] The role of the presumption of identity in transitional cases is an issue which has been raised in cases across the country, withdecisions favoring both positions. As yet, there are no Appellate Court decisions on this point. This is the first decision in Manitoba.

Isimply note that all of this litigation could easily have been avoided through a clear statement of Parliament’s intent contained within thelegislation. [10] Defence counsel argues that the presumption has not survived the legislative changes. While she concedes it is the intent ofthe Act to Amend to simplify the prosecution of alcohol related motor vehicle cases, she argues that the failure to address the presumptionof identity is a legislative shortfall which cannot be backfilled by the Court.

She argues that the legislative provisions are procedural andthat there is no ambiguity in the legislation, in that it has clearly eliminated the previous evidentiary shortcuts. She also argues that theprinciple of statutory

interpretation known as the “absurdity principle” does not apply, in that the prosecution would not be completelyfrustrated by the elimination of the presumption. She submits that the issue could easily be resolved by Crown counsel either providingan extrapolation report or calling a toxicologist on those limited cases impacted by this legislative gap. [11] Not surprisingly, Crown counsel takes an opposing view. She argues that the conceded legislative intent of the Act to Amendto streamline trials in alcohol related motor vehicle prosecutions should be read in conjunction with s. 43 of the

Interpretation Act R.S.C.1985, c-1-21, which addresses the effect of legislative changes during transitional periods. She argues that on a practical level theprosecution of these cases would be difficult and in some instances impossible. She cites the lack of available toxicologists, the practicaldifficulty of having them attend to testify in locations throughout Manitoba and Canada, both urban and rural. She also argues that theSupreme Court in R. v.

Jordan 2016 SCC 27 , [2016] 1 S.C.R. 631 has urged Courts to take into account issues of resources,and that the availability of toxicologists is a resource issue that will have to be considered when trials are scheduled, potentially result inunnecessary delays in prosecutions. Given that the overall changes in the legislation speak to the need to streamline trials of this nature,the only conclusion that ought to be reached is that the presumption of identity continues to apply in transitional cases. CASE LAW [12] As noted earlier, this issue has arisen a number of times in courts across the country.

The leading cases supporting defencecounsel’s position are R. v. Shaikh 2019 ONCJ 157 and R. v. Jagernauth 2019 ONCJ 231. In Shaikh, Burstein J. conducted a thoroughand thoughtful review of the arguments and the law related to transitional cases, concluding that the presumption of identity did notsurvive the legislative amendments and was not saved by the application of the

Interpretation Act. In Jagernauth, while expressingconcern about the ease by which the shortfall could be remedied, Renwick, J. adopted the findings in Shaikh, concluding that theprosecution could no longer rely on the presumption of identity. [13] Since the decisions in Shaikh and Jagernauth, a significant body of law has developed concluding that the presumption ofidentity continues to apply in transitional cases. The most often cited of those cases are R. v. Porchetta ONCJ 244 and R. v. Sivalingam2019 ONCJ 239.

Since their release, the prevailing judicial view has been to adopt the conclusion in Porchetta and Sivalingam. ANALYSIS [14] It is clear from a review of the provisions of the Act to Amend that Parliament’s intention was to simplify impaired drivingprosecutions. It is extremely important to bear in mind Parliament’s intention when conducting an overall assessment of this issue.Crown counsel argues the “absurdity” principle of statutory

interpretation. She points out that the

preamble of the Act to Amendspecifically addresses the ongoing problem that drinking and driving poses in this country. I agree that offences of this nature continue to

plague our society. However, I disagree with Crown counsel that the effect of concluding that the presumption of identity does not survive for transitional cases would make prosecutions effectively impossible. There is no evidence before the Court as to the number of cases that would be impacted by this

interpretation, nor was any evidence tendered as to the actual number of toxicologists in Canada. The absence of the presumption would undoubtedly require the Crown to produce a Certificate of Extrapolation by a qualified toxicologist, or to call viva voce evidence. That is a markedly different scenario than the one faced by the Court in Ali , supra , where the Court was asked to consider the impact of the 1979 Criminal Code amendments that saw a requirement for two breathalyser samples rather than the previous single sample. Like this case, the prosecution in Ali was a transitional one. The Court declined to apply the new legislation retroactively, as such an

interpretation would effectively frustrate the prosecution of any charges laid under the previous regime. [ 15 ] What is relevant from Ali is the Court’s comments regarding the application of what is now s. 43 of the

Interpretation Act (previously s. 35) (at pages 241-242): 35. Where an enactment is repealed in whole or in part, the repeal does not … (

a) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder; (

b) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed; (

c) affect any offence committed against or a violation of the provisions of the enactment so repealed, or any penalty, forfeiture or punishment incurred under the enactment so repealed; or (

d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and an investigation, legal proceeding or remedy as described in paragraph (

e) may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed. Subparagraphs (

b) and ( e ), together with the concluding part of this section, are particularly relevant here. The saving clause contained in the last paragraph permits legal proceedings to be instituted and continued as if there had been no repeal; I have no doubt that it covers the procedure to be followed in respect to such proceeding. Otherwise, the clause would hardly have any practical meaning. Also, subpara. (

b) serves to continue the effect of the certificate of analysis that was sought to be introduced into evidence by the Crown under the old s. 237. This certificate of analysis was in respect of one sample of breath given pursuant to the old s. 235; it was given when the old s. 237 was still in force and it is conceded that it would be admissible evidence if this

section had not been amended. It is also undisputable that the only object of this certificate, when it was given prior to the amended sections coming into force, was to serve as prima facie evidence of the facts stated therein in connection with a charge that might be laid under ss. 234 or 236. Such a certificate would certainly be “affected” if because of the repeal of the

section under which it was validly given it were deprived of all evidentiary value and would thus cease to have any usefulness at all.

Section 35(

b) is precisely intended to prevent such an undesirable result. CONCLUSION [ 16 ] The Act to Amend received Royal Asset on June 21, 2018 and came into force on December 18, 2018. Clearly it is for Parliament to enact any legislative provisions they feel are fit. However, it is important for the smooth operation of the judicial system that any new provisions be clear and unambiguous, particularly as it relates to any transitional period.

In the words of Martin, J in Ismail “certainty and finality would have been assured.” It is unfortunate that such care was not taken regarding this new legislative regime. [ 17 ] Taking into account the stated goals of the new legislation and adopting the findings in Porchetta and Sivalingam , I am satisfied that the presumption of identity continues to apply in the prosecution of those transitional cases of impaired driving laid under the previous Criminal Code provisions but prosecuted after the Code amendments set out in the Act to Amend. I am satisfied that this

interpretation is consistent with the stated purpose of the new legislation and is consistent with s. 43 of the

Interpretation Act. [ 18 ] I am therefore satisfied that the Crown has established that the accused had a BAC in excess of the legal limit at the time he was operating a motor vehicle. “Original signed by:” Harvie, P.J.