R. v. Yip-Chuck, 2019 ONCJ 367

ONTARIO COURT OF JUSTICE Central West Region - Brampton Ontario CITATION: R. v.

Yip-Chuck , 2019 ONCJ 367 DATE: May 29, 2019 Court File No.17-14625 BETWEEN: HER MAJESTY THE QUEEN — AND — JONATHAN YIP CHUCK Before Justice B Duncan Heard on May 1 2019 Reasons for Judgment released on May 29 2019 C Agatiello............................................................................................ counsel for the Crown B Daley............................................................................................... counsel for the accused B Duncan J. : [ 1 ] The defendant is charged with exceed 80, offence date November 25 2017 [ 2 ] This is a transitional case, that is, the alleged offence occurred before the coming into force of the recent amendments to the drinking and driving laws while the trial occurred after that date, December 18 2018. [ 3 ] Mr.

Daley with his customary candour and efficiency has narrowed his case to two points, both triggered by the advent of the new legislation. The Shaikh point: [1] [ 4 ] This argument contends that the new legislation and its provisions addressing transitional cases fail to provide for the continuing applicability of the presumption of identity for such cases. Without it, the argument goes, the Crown must link blood alcohol test results back to the time of driving by the evidence of an expert toxicologist. [ 5 ] Since the Shaikh decision a number of judges of our court have considered the issue.

There is no agreement on the point. [2] With all due respect to the pro- Shaikh view, I believe that the contrary view is the correct one. I would adopt in particular the reasoning and conclusion of Latimer J. in R v McAlorum 2019 ONCJ 259 and can add little to his analysis. [ 6 ] Except this. [ 7 ] The failure to specify the continuance of the presumption of identity can be accounted for as: • an expression of Parliament’s actual intention to have the presumption cease immediately and not apply to transitional cases or

• a considered Parliamentary assessment that no specific transitional provision was necessary or • a mistake or oversight by the draftsman and lawmakers. [8] With respect to the first option, it should be kept in mind that the presumption of identity has been part of Canada’s breathalyzerlaw since it was first enacted in the 1960’s – over 50 years ago. The presumption has been an integral part of that scheme – necessary[3]to connect the test readings back to the time of driving.

It is unimaginable that, after fifty years, Parliament would intentionally decide torepeal and discontinue that presumption for the last few months for which it would be required. [9] With respect to the second possibility, the law fully supports the view that, unless a contrary intention appears, transitional casesare to be continued as if nothing had changed.

The former law continues to apply unless there is specific provision to the contrary.[4] The fact that the new legislation provides for immediate and retrospective application of the new presumption of accuracy cannot beconstrued in any way as a contrary intention ousting what otherwise would be the survival of the presumption of identity for transitionalcases. [10] With respect to the third option – mistake: Even if the new enactment’s silence on the continued applicability of the presumptionof identity was an oversight, it is saved by the law as per the second option above.

It was not necessary to make provision for thepresumption of identity in transitional cases since silence, either intentional or unintentional, is sufficient to ensure its survival. The Flores-Vigil point:[5] [11] For reasons that are not obvious to me, the new legislation specifically provides that the new presumption of accuracy applies intransitional cases. This requires the Crown to prove the new requirements including that each subject test was preceded by a calibrationcheck against a standard alcohol solution.

This check has long been part of the operating procedure in breath testing in Canada, thoughthe new legislation has given it new legal significance as being a necessary element of proof in order to give rise to the presumption ofaccuracy. [12] In Flores-Vigil the Court held that the Crown must prove that the solution was one tested and certified by an analyst but also thatthe solution so certified contains an identified concentration of alcohol that should produce a certain target result when introduced intothe Intoxilyzer – if that machine is working properly.

In this case, unlike Flores-Vigil, an analyst’s certificate was presented in evidencecertifying that the solution was suitable for use in the Intoxilyzer. It did not, however, reveal the concentration of alcohol in that solution. [13] I agree with Justice Parry in Flores-Vigil that the word “calibrate” means to test or adjust a tool or instrument against a knownstandard. Accordingly, a calibration check that yields a certain result is meaningless unless the value of the standard is known. [14] However, there is more than one way that a fact can be “known”.

It could be set out in the analyst’s certificate itself – and Iunderstand that the new analyst’s certificates put in use after December 18 2018 include a statement regarding the concentration. Or itcould be “known” as part of the qualified technician’s training. Such is the case here. His training taught him that the standard alcoholsolutions certified by the CFS for Ontario always contain a concentration that produces a target value of 100 plus or minus 10.

Acalibration check that produces a reading of 99, as in this case, is therefore a meaningful check of the machine’s accuracy. [15] It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. Isuspect that only a small percentage of what one “knows” is gained from firsthand experience or personal verification.

At some point anyhearsay concern dissipates and a witness may testify as to learned knowledge. [16] In this exact context courts have permitted qualified technicians to testify over hearsay objections as to the suitability of solutionsused in breath testing machines: see R. v. Porchetta, [2019] O.J. No. 1985 and authorities cited therein particularly R. v. Ware (1975), 30C.R.N.S. 308 (Ont. C.A.) and R. v. Harding (1994), (ON CA), 17 O.R. (3d) 462 (C.A.). See also R. v.

Lightfoot, (SCC), [1981] 1 SCR 566. [17] In the same way, in my opinion, the technician may testify as to what he has learned about the alcohol concentration and targetvalues of the solutions that are used: R. v. Does, [2019] O.J. No. 1924. That evidence was given by the technician in this case andestablished what was required to give rise to the presumption of accuracy. Conclusion: [18] The arguments are rejected. The case has been proven. The defendant is found guilty as charged.

Released: May 29 2019 Justice B Duncan [2] Some cases that follow Shaikh: R v Jagernauth, 2019 ONCJ 231 - Renwick J: - R v Melhado, [2019] O.J. 1993, S. Brown J. Contra:

[2] Some cases that follow Shaikh: R v Jagernauth , 2019 ONCJ 231 - Renwick J: - R v Melhado, [2019] O.J. 1993 , S. Brown J. Contra: R v Sivalingham, 2019 ONCJ 239 - Schwarzl J; R v Porchetta , 2019 ONCJ 244 - Rose J; R v McAlorum , 2019 ONCJ 259 - Latimer J; R. v. Etcheverria, (unreported) Brown J.