R. v. Shaikh, 2019 ONCJ 157

ONTARIO COURT OF JUSTICE CITATION: R. v. Shaikh , 2019 ONCJ 157 DATE: 2019 – 03 – 26 COURT FILE No.: 18-33892 BETWEEN: HER MAJESTY THE QUEEN — AND — MUHAMMAD SHAIKH Before Justice Paul Burstein Heard on January 23 and 24, 2019 Reasons for Judgment released on March 26, 2019 G. Hendry.............................................................................................. counsel for the Crown R. Aitken and N.

Abdullah............................................................ for the defendant Shaikh BURSTEIN J.: Introduction [ 1 ] What happens when Parliament expressly repeals a provision creating an evidentiary presumption that was previously in place to help the Crown prove an essential element of a criminal offence? Does that repealed provision continue to apply in a post-repeal trial of charges laid prior to the date of the repeal? [ 2 ] Mr.

Shaikh stands charged that on or about February 16, 2018 he had the care or control of a vehicle while his ability to drive was impaired by alcohol (“impaired care or control”) and while his blood-alcohol concentration exceeded the legal limit (“care or control over 80”). The trial commenced before me on January 23, 2019 and was completed the next day. The Crown called three witnesses to prove its case: a civilian security officer who observed Mr.

Shaikh’s alleged impairment and alleged control of the vehicle; the arresting officer who attended the scene in response to a call from security; and the qualified breath technician who performed the breath tests on Mr. Shaikh back at the police station. The Crown presented no expert opinion evidence to relate the results of Mr. Shaikh’s breath tests back to the time he is alleged to have been in care or control of the vehicle. Instead, the Crown purported to rely upon the “presumption of identity” contained in what was formerly s. 258(1) (

c) of the Criminal Code . [ 3 ] Mr. Shaikh elected to not testify at his trial and called no other evidence in his defence. The evidence and issues at trial [ 4 ] In the late night hours of February 15, 2018, Mr. Shaikh arrived at the front door of “Shagwells”, a pub on the Durham campus of the University of Ontario Institute of Technology (“UOIT”). According to Christopher Veira, a manager for the security company responsible for controlling entry to the pub, Mr. Shaikh appeared to be visibly impaired. He smelled of alcohol, was swaying while

standing, and was slurring his words. When denied entry because of concerns that he was already too intoxicated, Mr. Shaikh tried to push his way past Mr. Veira to gain entry into the pub. Mr. Shaikh was turned away. [ 5 ] As a result of the commotion caused by Mr. Shaikh at the door, Campus security were called to attend. When they arrived, Mr. Veira spoke with them outside the entrance to the building housing the pub. Mr. Veira’s attention was directed to a white Mercedes stopped curbside in front of the building. It was stopped in the driveway rather than in one of the parking spots in the nearby lot. Mr.

Shaikh was in the driver’s seat. He was alone in the vehicle. The vehicle was running. There was loud music playing from the vehicle. At some point, Mr. Veira saw the vehicle advance a few feet along the curb. The vehicle moved forward a second time. Concerned about the risk which Mr. Shaikh posed to other patrons entering and leaving the pub, Mr. Veira called the police. [ 6 ] Mr. Veira witnessed Cst. Chmelowsky’s police cruiser drive into the parking lot and stop near the Mercedes. Cst. Chmelowsky exited his cruiser and approached Mr. Shaikh, who was still sitting in the driver’s seat. Mr.

Shaikh turned down the music as Cst. Chmelowsky approached. Mr. Shaikh’s eyes appeared glassy and his movements seemed sluggish. Cst. Chmelowsky noticed a strong odour of alcohol emanating from Mr. Shaikh’s breath. In response to Cst. Chmelowsky’s questions, Mr. Shaikh admitted to having consumed alcohol but said that he was not driving and was only waiting for his friends to come out of the pub. [ 7 ] Cst. Chmelowsky directed Mr. Shaikh to get out of the vehicle. Mr. Shaikh almost fell out of the vehicle as he exited. He had to brace himself against the vehicle. Cst. Chmelowsky arrested Mr.

Shaikh for impaired driving and demanded that Mr. Shaikh accompany him to the police station to provide breath samples for analysis. The time was 12:10 a.m. [ 8 ] At the station, Cst. Gendron administered two breath tests using an approved instrument. Mr. Shaikh’s blood-alcohol concentration at 1:01 a.m. was measured to be 170 mgs of alcohol in 100 ml of blood. A second breath sample taken at 1:24 a.m. measured at 160 mgs of alcohol in 100 ml of blood. In his evidence, Cst.

Gendron addressed the operational requirements of the new evidentiary presumption of accuracy afforded by the recently enacted s. 320.31(1) of the Criminal Code . During the trial, Mr. Shaikh did not seriously contest that Cst. Gendron’s evidence adequately established the statutory preconditions required for the Crown to lay claim to the s. 320.31 presumption of accuracy. In other words, the defence did not dispute that the Crown had conclusively proven that Mr. Shaikh’s blood-alcohol concentration exceeded the legal limit at the time that Cst.

Gendron administered the breath tests at the police station. [ 9 ] The issue at trial was whether the results of the breath tests taken at the police station amounted to conclusive proof of Mr. Shaikh’s blood-alcohol concentration back at the time he is alleged to have been in care or control of the vehicle. The defence also argued that the evidence failed to prove beyond a reasonable doubt that Mr. Shaikh was in care or control of the vehicle. Is the Crown entitled to rely upon the “presumption of identity” in the now repealed s. 258 of the Criminal Code to establish what Mr.

Shaikh’s blood alcohol concentration was back at the time he is alleged to have been in care or control of the vehicle?

a) Introduction [ 10 ] Mr. Shaikh’s s. 253 charges date back to February 16, 2018. At his trial before me on January 23, 2019 , the Crown sought to rely on the presumption afforded by the former s. 258 of the Criminal Code to establish that the results of Mr. Shaikh’s breath tests at the police station were proof of what his blood-alcohol concentration was at the time of the two alleged “care or control” offences. [ 11 ] On December 18, 2018 , sections 12 to 50 of

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, (hereinafter “the Act to amend”) came into force.

Section 14 of the Act to amend expressly states: The heading before

section 249 and sections 249 to 261 of the Act are repealed . [Emphasis added.] The “Act” to which s. 14 of the Act to amend refers is the Criminal Code (as confirmed by the French version of ss. 12 to 14 of the Act to amend ). According to s. 14 of the Act to amend,

Section 258 was one of the sections of the Criminal Code which Parliament expressly repealed as of December 18, 2018.

[12] The Crown contends that despite its express repeal on December 18, 2018, s. 258 of the Code continues to apply at the trial ofcharges laid prior to the coming into force of the Act to amend even when that trial did not commence until after the Act to amend cameinto force. The Crown submits that the Act to amend can, and should, be interpreted in a manner which breathes continued life into whatwas formerly s. 258 of the Criminal Code as that is what Parliament intended. In support of its position that s. 258 continues to applyeven after it has been expressly repealed by s. 14 of the Act to amend, the Crown makes three submissions: 1. The common law principles of statutory

interpretation require the court to read down s. 14’s express repeal of s. 258 so as tocomport with the legislative intent of the Act to amend and to avoid “absurd” consequences. 2. The decision of the Supreme Court of Canada in R. v. Dineley supports the conclusion that Parliament intended that the newpresumption of accuracy in s. 320.31(1) apply retrospectively to the trials of existing “over 80” offences and that the repealedpresumption of identity in s. 258 would also continue to apply to those trials.

Section 43 of the

Interpretation Act extends the operation of the presumption of identity in the repealed s. 258 to “over 80” chargeswhich go to trial after the Act to amend came into force. Before addressing each of the Crown’s three arguments, it is helpful to first review the nature of the evidentiary presumptions in theformer s. 258 as well as the Act to amend’s new statutory scheme for prosecuting drinking and driving offences.

b) Overview of the old and new legislative schemes for prosecuting drinking and driving offences [13] Prior to the passage of the Act to amend, the Criminal Code included a set of evidentiary presumptions aimed at streamliningtrials of s. 253’s drinking and driving offences. In its recent decision in R. v. Alex, 2017 SCC 37 , [2017] S.C.J.

No. 37, theSupreme Court of Canada summarized the nature and purpose of those evidentiary shortcuts as follows (at paras. 2 to 4): To address the challenges posed by the large number of drinking and driving offences, Parliament has, over the years, taken steps tosimplify and streamline the trial process. One such step, which dates back to 1969, involved the introduction of evidentiary shortcuts intothe Criminal Code, R.S.C. 1985, c. C-46. These shortcuts, now found in ss. 258(1)(

c) and 258(1)(

g) of the Code, permit the Crown toestablish an accused's blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused's breathreadings. In the case of "over 80" charges, this relieves the Crown from having to call two witnesses at every trial: (1) a breath technician to attestto the accuracy of the breath readings; and (2) an expert toxicologist to relate the readings back to the time when the alleged offenceoccurred.

To ensure that these evidentiary shortcuts yield reliable evidence, Parliament built a number of preconditions into the scheme, the mostnotable being that the breath samples have to be taken within a prescribed period of time following the alleged offence; the samples haveto be provided directly into an approved container or instrument; and the instrument has to be operated by a properly qualified technician. [14] The evidentiary shortcut in s. 258(1)(

c) of the Code was specifically referred to as the “presumption of identity” given that itrequired a court to presume that the blood-alcohol concentration at the time of the accused’s breath tests was identical to what the blood-alcohol concentration would have been back at the time when the alleged drinking and driving offence occurred. [15] Pursuant to the Act to amend, the actus reus elements of the drinking and driving offences have been redefined such that there isno longer an issue as to what a motorist’s blood-alcohol concentration was back at the time of driving.

The new offences involvingoperation of a vehicle (i.e., “a conveyance”) while impaired or while “80 plus” now focus on whether the motorist was impaired or “80plus” within two hours of having operated a vehicle. Given the new offence

definitions, a presumption of identity is no longer relevantto what the Crown must prove to establish guilt. Accordingly, while the Act to amend creates a presumption of accuracy similar in natureto the one previously in place by virtue of s. 258(1)(

g) of the Code (see s. 320.31(1)), the Act to amend does not include any newpresumption of identity similar to what had previously existed in s. 258(1)(

c) of the Code. [16] As I will discuss below, as part of the same legislation which expressly repealed s. 258 and its evidentiary presumptions,Parliament expressly addressed whether the new presumption of accuracy should apply to existing charges which would not come to trialuntil after the Act to amend came into effect on December 18, 2018. In s. 32(2) of the Act to amend, under a heading “TransitionalProvisions”, Parliament said:

Subsection 320.31(1) of the Criminal Code, as enacted by s. 15 of this Act, applies to the trial of an accused that is commenced on orafter the day on which that

section 15 comes into force if the sample or samples to which the trial relates were taken before that day. [17] Other than the implicit inclusion of s. 258 in the set of previous Code provisions repealed by s. 14 of the Act to amend, there isno mention of 258(1)(

c) anywhere in the Act to amend. For example, unlike for the new s. 320.31(1), the Act to amend contains notransitional provision calling for the continued application of s. 258 (nor s. 258(1)(c)) “to the trial of an accused that is commenced on orafter the day on which [section 14] comes into force if the sample or samples to which the trial relates were taken before that day”.

c) A legislative intent to “simplify” trials of over 80 offences does not justify “reading down” the provisions of the Act to amend whichexpressly repeal the operation of s. 258 as of December 18, 2018 [18] There can be little doubt that the Act to amend was intended to “simplify” the prosecution of impaired driving cases in an effortto reduce the number of impaired drivers on the road threatening the lives of Canadians. The

preamble to the Act to amend expresslyrecognizes that “it is important to simplify the law relating to the proof of blood alcohol concentration”. Indeed, through the Act toamend Parliament has redefined the drinking and driving offences in a way that allows evidence of impairment or excessive blood-alcohol within two hours of the alleged driving to satisfy the actus reus elements. By redefining the elements of the drinking and drivingoffences, Parliament has dispensed with the need to prove what the motorist’s state of impairment was at the time of driving.

Parliamenthas now made it an offence for a motorist to be impaired or “over 80” (i.e., “80 plus”) within two hours of having operated a motorvehicle. [19] The Crown submits that it would be inconsistent with that legislative intent to read the provisions of the Act to amend as havingmade it more difficult to prosecute existing “over 80” charges once that Act came into force.

Admittedly, the repeal of the presumptionsin s. 258 does complicate those trials by forcing the Crown to adduce expert opinion evidence extrapolating the breath test resultsestablished by certificates introduced pursuant to the new s. 320.31(1) back to the time of driving. According to the Crown, theunderlying objective of trial simplification compels this Court to “interpret” the Act to amend in a way which gives continued legislativeeffect to the presumption of identity in s. 258(1)(

c) of the Code. [20] I accept that legislative intent must always be a key consideration when interpreting a statutory provision. As the SupremeCourt of Canada explained in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559 (at para. 26): In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a widerange of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, (SCC), [1984] 1 S.C.R. 536, atp. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, (SCC), [1994] 3 S.C.R. 3, atp. 17; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001SCC 2, at para. 33, per McLachlin C.J.; Chieu v.

Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, atpara. 27. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the

InterpretationAct, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberalconstruction and

interpretation as best ensures the attainment of its objects". [21] After settling upon the correct approach to statutory

interpretation, the Court in Bell ExpressVu emphasized that resort tointerpretative aids such as “context” and “legislative intent” must not be used to override the obvious meaning of a legislative provision:see also R. v. Clarke, 2014 SCC 28 , [2014] S.C.J. No. 100 at para. 12. Claims of legislative “ambiguity” must be “real” andnot contrived (at paras. 29 and 30): What, then, in law is an ambiguity? To answer, an ambiguity must be "real" (Marcotte, supra, at p. 115). The words of the provisionmust be "reasonably capable of more than one meaning" (Westminster Bank Ltd. v.

Zang, [1966] A.C. 182 (H.L.), at p. 222, per LordReid). By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capableof multiple

interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: "It is only when genuine ambiguity arises between two or moreplausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to externalinterpretive aids", to which I would add, "including other principles of

interpretation".

For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come todiffering conclusions on the

interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallyingof the number of decisions supporting competing

interpretations and then apply that which receives the "higher score", it is notappropriate to take as one's starting point the premise that differing

interpretations reveal an ambiguity.

It is necessary, in every case, forthe court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter todetermine if "the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to theirmeaning" (Willis, supra, at pp. 4-5). [Emphasis added.] Just as “differing conclusions” amongst courts and academics does not support a claim of legislative ambiguity, debate about what astatutory provision should have said to best achieve its legislative objective will not “reveal an ambiguity” when the words of theprovision are not “reasonably capable of more than one meaning”. [22] In my view, the words in s. 14 of the Act to amend are not reasonably capable of more than one meaning: “… sections 249 to261 of the Act are repealed”.

Nor is there any ambiguity in s. 52 of the Act to amend as to when s. 14 came into effect – December 18,2018. There is also no ambiguity arising from a consideration of the French version of the Act to amend. The French version of s. 14expressly states that “[ss. 249 to 261] sont abroges”, meaning “are repealed”. Similarly, the French version of s. 52 of the Act to amend states confirms that ss. 12 to 50 of the Act to amend “entrent en vigueur” (i.e., “come into force”) on the 180th day after the day on whichthe Act to amend received royal assent, namely, December 18, 2018.

The French and English versions of these provisions are entirelyconsistent and neither version reveals any ambiguity. The meaning of each version is clear: s. 258 of the Code was repealed as ofDecember 18, 2018. [23] A secondary principle of statutory

interpretation, one closely related to the emphasis on legislative intent, is sometimes referredto as the “absurdity principle”. That principle holds that legislators would not have enacted legislation intending to create absurd results. In Rizzo and Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, Iacobucci J. wrote (at para. 27): “It is a well-establishedprinciple of statutory interpre​tation that the legislature does not intend to produce absurd consequences” (and also see similar commentsfrom Dickson J. in Morgentaler v. The Queen, (SCC), [1976] 1 S.C.R. 616 at page 676). Like any other principle ofstatutory

interpretation, however, resort to the “absurdity principle” is only appropriate when genuine ambiguity arises between two ormore plausible readings: see Bell ExpressVu, supra at para. 30. [24] Apart from my view that the wording of ss. 14 and 52 is not ambiguous and therefore not amenable to consideration of theabsurdity principle, I am not satisfied that a plain reading of those provisions in the Act to amend would in fact “produce absurdconsequences”. The Supreme Court of Canada’s decision in R. v.

Ali, (SCC), [1980] 1 S.C.R. 221, represents anapplication of the absurdity principle being invoked in the interpre​tation of an evidentiary amendment to the Criminal Code[1]. Prior tothe trial of the accused in Ali, Parliament had enacted a new evidentiary presumption which could never be satisfied by investigationswhich had preceded that package of legislative amendments.

Despite its obvious procedural nature, the Supreme Court held that the newevidentiary presumption could not have been intended to apply retrospectively to existing charges which came to trial after the newenactment as the Crown could not possibly satisfy the new statutory preconditions. The Court held that a retrospective application of thenew enactment would “frustrate” the prosecution of existing charges. [25] Unlike in Ali, giving immediate effect to Parliament’s express repeal of s. 258 would not prevent the Crown from effectivelyprosecuting existing “over 80” charges.

In the absence of a presumption of identity, the Crown can still effectively prove its case on thestrength of a certificate of qualified technician (admissible pursuant to the new s. 320.31(1) in the Act to amend) combined with theextrapolation opinion of a toxicologist. The requisite opinion evidence can readily be presented by a routine report attached to anaffidavit: see s. 657.3(1) of the Code.

Other than the need to obtain that one additional document, the potential added complexity ofprosecuting existing “over 80” charges in the absence of the s. 258 presumption of identity would be entirely manageable in the vastmajority of transitional cases.

In the result, I am unable to conclude that the absence of a presumption of identity for the prosecution ofthe remaining transitional “over 80” cases would lead to “absurd” results, certainly not to the extent that I feel compelled to ignore theplain and simple words of the provisions in the Act to amend which have expressly repealed s. 258 of the Code as of December 18, 2018. [26] Under the guise of applying the principles of statutory

interpretation, the Crown is effectively asking this Court to rewrite s. 14and/or s. 52 of the Act to amend to include an exemption for trials of existing “over 80” charges which come to trial after December 18,2018. There are two fundamental flaws to such a request. First, Parliament clearly turned its mind to that very class of cases in s. 32 ofthe Act to amend.

In s. 32 of the Act to amend Parliament expressly provided that the new evidentiary presumption (of accuracy) is to beapplied “to the trial of an accused that is commenced on or after the day on which [s. 320.31(1)] comes into force if the sample orsamples to which the trial relates were taken before that day”. Despite Parliament having chosen to not include any similar wording as aqualification of the Act to amend’s repeal of s. 258 of the Code, the Crown asks this Court to read those words in to either s. 14 or s. 52of the Act to amend.

That would be inconsistent with Parliament’s clear intention of having only s. 320.31(1) apply to subsequent trialsof existing “over 80” charges. [27] The second fundamental flaw in the Crown’s proposed “reading in” of the qualifying language to the express repeal of s. 258relates to the very narrow limits of a court’s jurisdiction to modify the wording of legislation, especially when that modification is

intended to benefit the Crown at the expense of the accused. In the absence of any ambiguity in the wording of s. 14 and s. 52 of the Actto amend, the Crown is effectively asking for the Court to go beyond its narrow interpretative role and to declare what the Act to amendshould have said to best achieve its legislative objective of “simplifying” trials of existing “over 80” charges. Regardless of how anycourt feels about the practical difficulties potentially imposed by poorly worded legislation, the rule of law demands that any necessaryrewording of the legislation come from Parliament and not the court.

Allowing judges to craft their own fixes for perceived legislativegaps risks undermining the rule of law, a basic tenet of our democratic society. It is particularly problematic when a judge is asked to fixa legislative gap in a manner exclusively intended to relieve the Crown from otherwise having to prove an essential element of a criminaloffence.

While it is well within the authority of Parliament to add words to a statute so as to restore the Crown’s ability to rely upon anotherwise repealed evidentiary presumption to prove a criminal charge, the task of legislative repair must never be left to those who areexpected to remain impartial and independent when adjudicating criminal cases.

d) The decision in R. v. Dineley does not support a conclusion that s. 14’s repeal of s. 258 was not intended to apply immediately intrials of existing “over 80” charges commenced after the Act to amend came into force [28] The Crown also contends that the Supreme Court of Canada’s decision in R. v. Dineley, 2012 SCC 58 , [2012] S.C.J.No. 58, supports its claim that the repeal of the evidentiary presumptions in s. 258 cannot be applied retrospectively in trials of existing“over 80” charges commenced after the Act to amend came into force.

Any such reliance upon the Court’s decision in Dineley in thecontext of the issue in this case is misplaced. [29] In Dineley, the accused had gone to trial on an “over 80” charge which predated the enactment of the “Bill C-2” amendments tothe drinking and driving provisions of the Criminal Code. In July of 2008, Parliament had enacted a new set of provisions governing thepresumption of accuracy and the presumption of identity contained within s. 258 of the Code.

The issue in Dineley was whether thosenew evidentiary provisions were applicable to the prosecution of existing “over 80” charges which went to trial after the newevidentiary provisions came into force. The Supreme Court was faced with deciding whether those new evidentiary provisions, whichimposed more onerous requirements on the defence, were applicable to charges which predated the enactment of those new provisions.

A majority of the Supreme Court held that because the new provisions adversely affected an accused’s substantive right to defendagainst an “over 80” charge, absent express wording to the contrary, the new evidentiary provisions could not have been intended toapply retrospectively to existing charges. [30] There is no credible analogy between the situation in Dineley and the one created by the Act to amend. The issue arising fromthe Act to amend is whether a new provision repealing an old evidentiary presumption was intended to apply to trials commencingafter the repeal was intended to take effect.

Sections 14, 32(2) and 52 of the Act to amend indicates Parliament’s intention to repealthe old evidentiary presumptions in s. 258 as of December 18, 2018 and to instead apply the new evidentiary presumption in s.320.31(1). When the Crown sought to invoke the s. 258 presumption of identity at Mr. Shaikh’s trial on January 23, 2019 thatevidentiary provision had already been repealed. A refusal to apply the repealed evidentiary presumption involves an immediate, not aretrospective, application of the repealing provision set out in s. 14 of the Act to amend.

e) The

Interpretation Act does not support a conclusion that Parliament’s express repeal of s. 258 was intended to be held in abeyancefor subsequent trials of existing “over 80” charges [31] In addition to the common law principles of statutory

interpretation, the Crown also relies upon the provisions of theInterpretation Act which address how legislative repeals of previous enactments affect subsequent prosecution of existing charges. Sections 43 and 44 of the

Interpretation Act provide: 43. Where an enactment is repealed in whole or in part, the repeal does not (

a) revive any enactment or anything not in force or existing at the time when the repeal takes effect, (

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

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

d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penaltyor forfeiture incurred under the enactment so repealed, or

(

e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to inparagraph (

c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d), and an investigation, legal proceeding or remedy as described in paragraph (

e) may be instituted, continued or enforced, and thepunishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed. 44. Where an enactment, in this

section called the "former enactment", is repealed and another enactment, in this

section called the"new enactment", is substituted therefor, (

a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until anotherperson is appointed in the stead of that person; (

b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, formsand things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with thenew enactment; (

c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the newenactment in so far as it may be done consistently with the new enactment; (

d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto (

i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment, (ii) in the enforcement of rights, existing or accruing under the former enactment, and (iii) in a proceeding in relation to matters that have happened before the repeal; (

e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture ifimposed or adjudged after the repeal shall be reduced or mitigated accordingly; (

f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, thenew enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of thelaw as contained in the former enactment; (

g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, inso far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and (

h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing,be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment,but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read asunrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment. [32] The provisions of the

Interpretation Act are available to assist in cases where there is no clear indication as to when a newenactment was intended to take effect. As MacFarland J.A. observed in Cobb v. Long Estate, 2017 ONCA 717 , [2017] O.J.No. 4830 at para. 79 (C.A.): “I emphasize that the purpose of presumptions concerning the temporal application of legislation is to assist,along with other principles of statutory

interpretation, in the determination of legislative intent: Dikranian v. Quebec (Attorney General),2005 SCC 73 at para. 36.” The question in this case is whether resort to ss. 43 and/or 44 of the

Interpretation Act is necessary to discern

Parliament’s intent concerning the temporal application of ss. 14 and 32(2) of the Act to amend. [ 33 ] Almost 40 years ago, the Supreme Court in R. v. Ali , supra, considered how ss. 43 and 44 [enumerated in 1980 as ss. 35 and 36] of the

Interpretation Act helped determine when a legislative repeal of an evidentiary presumption relating to the prosecution of existing “over 80” charges was intended to take effect. Given the Court’s conclusion that it was factually impossible for the new version of the evidentiary presumption to be applied at subsequent trials of existing charges, the Court considered whether the repealed evidentiary presumption was intended to have continued application in those trials.

In relation to the temporal intent of that legislative repeal, the Court held: We are in the situation where a procedural statute has been repealed and no new rule of procedure substituted for the old one "in relation to matters that have happened before the repeal". This is precisely a case for the application of s. 35 [now s. 43 ] of the

Interpretation Act which, generally, abrogates the common law rule "that, when

an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" Surtees v. Ellison [(1829), 9 B.& C. 750], per Lord Tenterden at p. 752)…. Subparagraphs (

b) and (e) [of what is now s. 43 of the

Interpretation Act ], 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. This reasoning in Ali was later applied by the Ontario Court of Appeal in R. v. Copley, supra , to a similar legislative repeal of a version of the Criminal Code ’s evidentiary breath testing presumptions. [ 34 ] At first glance, this passage from Ali seemed dispositive of the issue before me. However, upon closer examination, I have concluded that the legislation at issue in Ali was so materially different from ss. 14, 32(2) and 52 in the Act to amend that the reasoning in Ali offers me no assistance in deciding the particular issue in this case: (

i) The focus of the Supreme Court’s decision in Ali was the repeal’s potential impact on the admissibility of the breath technician’s certificate. As the above passage indicates, the Court was concerned about how a repeal of the former evidentiary provision would “affect” certificates which had already been created with the former provisions in mind.

Unlike the legislation at issue in Ali , it is not the repeal of s. 258 which deprives existing certificates of their “usefulness”, but rather Parliament’s express declaration in s. 32(2) of the Act to amend that it is the presumption in the new s. 320.31(1) which now governs the admissibility of certificates in trials of existing “over 80” charges. (ii) The decision in Ali was premised on the Court’s finding that Parliament intended the package of legislative amendments at issue in that case to apply prospectively.

By contrast, s. 32(2) of the Act to amend makes clear that Parliament intended the new evidentiary provisions to apply retrospectively to trials of existing “over 80” charges. Indeed, unlike the legislation at issue in Ali , ss. 14 and 32(2) of the Act to amend reflect a legislative intent to oust the evidentiary presumptions in s. 258 of the Code in favour of an immediate application of the new provisions to all subsequent trials. There is nothing in the Ali decision suggesting that s. 43 of the

Interpretation Act should override such clear legislative intent. (iii) As discussed above at Paragraph 24, the Court’s main concern in Ali was that the added requirements of the new procedural provisions made it factually impossible for the Crown to satisfy the requirements in prosecutions of existing “over 80” charges. Accordingly, while the Court accepted that s. 44 (d) [then s. 36(d)] was applicable to the new amendments, the Court held that it would have been impossible to “adapt” those new procedural provisions to the post-amendment trials of existing charges.

That is not the case with respect to the provisions of the Act to amend . The evidentiary provisions in the Act to amend can be adapted to trials of existing charges. Parliament has recognized the adaptability of the new scheme by expressly requiring that s. 320.31(1) be applied retrospectively in trials of existing charges. Given Parliament’s clear recognition of the adaptability of the new evidentiary scheme to trials of existing “over 80” charges, the reasoning in Ali does not apply. In other words, unlike in Ali , s. 44 of the

Interpretation Act is applicable to ss. 14 and 32(2) of the Act to amend such that “the procedure established by the new enactment shall be followed as far as it can be adapted thereto”. (iv) In the legislation at issue in Ali , Parliament was entirely silent as to the temporal application of that new evidentiary scheme. In remaining silent on the issue of retrospectivity in the legislation at issue in Ali , Parliament had allowed for s. 43 [then s. 35] of the

Interpretation Act to fill the void and maintain the scheme established by the repealed provision. Similarly, applying Ali , the Ontario Court of Appeal in R. v. Copley, supra , found that a subsequent legislative repeal of the evidentiary presumptions at issue in Ali was not

intended to have immediate effect: “[the enactment] clearly shows an intention to preserve the evidentiary value of the certificate made inaccordance with the former subsection. While there is no clear intention to preserve the presumption, there is certainly no clear intentionto abolish it, even for a limited period”. By contrast, Parliament has left no doubt about its temporal intentions with respect to theevidentiary presumptions set out in the Act to amend. Through ss. 14, 32(2) and 52 of the Act to amend, Parliament has made clear itsintention to have the new presumption of accuracy in s. 320.31(1) applied retrospectively to trials of existing charges. Invoking s. 43 ofthe

Interpretation Act to restore the repealed presumptions in s. 258 would be inconsistent with that clear legislative intent. Relying upons. 43 in the manner suggested by Ali (and Copley) in the circumstances of this case would result in two different presumptions ofaccuracy being in force simultaneously at trials of existing “over 80” offences: the one in the otherwise repealed s. 258 of the Code andthe one in the new

section of the Code (s. 320.31(1)) which Parliament wanted to apply. Avoidance of the potential proceduralconfusion resulting from such an application of s. 43 to the repealed s. 258 is consistent with Parliament’s intent to “simplify” theprosecution of “over 80” charges going forward and was achieved by Parliament specifying in s. 32(2) of the Act to amend that the newevidentiary scheme should be applied retrospectively in trials of existing “over 80” charges. (

v) In a case decided decades after Ali, R. v. Puskas, (SCC), [1998] S.C.J. No. 51, the Supreme Court of Canadarejected the suggestion that the repeal of a procedural provision relating to a litigation “right” was governed by the terms of s. 43 of theInterpretation Act. There were a number of events which would have needed to occur before the repealed provision would have appliedto the litigation.

Because those events had not occurred by the time the provision had been repealed, the Court held that the impact ofrepealing that provision was instead governed by the presumption of immediate application (i.e., retrospectivity) set out in s. 44 of theInterpretation Act. In the passage from Ali quoted above, the Court noted that the breath certificate had already been created by the timethe corresponding evidentiary provision had been repealed. By contrast, at the time when s. 258(1)(

c) was repealed by the Act to amend,the events required to engage the operation of that evidentiary presumption had not occurred as no trial had commenced. Nothing is“done” in relation to the s. 258(1)(

c) presumption unless and until a trial has commenced and evidence is adduced capable of establishingthe statutory preconditions required for the presumption’s application at trial. [35] While I have concluded that the reasoning in Ali does not apply to the particular provisions at issue in the case before me, it isworth noting that the passage seems inconsistent with the current jurisprudential approach to the temporal application of amendments to procedural provisions. In her leading text on statutory

interpretation, Sullivan on the Construction of Statutes (5th ed. 2008), ProfessorSullivan summarizes the current understanding of how ss. 43 and 44 of the

Interpretation Act are to apply in proceedings where arepealed enactment is enlisted by a party: “… the application of new substantive law is delayed by the survival of repealed law [but] theapplication of new procedural law is not” (at p. 698). Professor Sullivan’s description seems inconsistent with what was said in Ali. [36] The current understanding of ss. 43 and 44 of the

Interpretation Act recognizes that s. 43 was designed to sustain substantiverights and obligations (including potential legal liability) which may have arisen as a product of a now repealed statute.

Section 43authorizes the commencement or continuation of legal proceedings aimed at enforcing any such right, obligation or liability despite therepeal of the underlying statute. It is s. 44, however, which sets out the interpretive approach when there has been a legislative repeal ofprocedural provisions relating to the conduct of those legal proceedings.

In other words, to the extent that s. 43 authorizes legalproceedings to continue or commence after the date upon which s. 253 was repealed, that aspect of s. 43 must be read in conjunction withthe portions of s. 44 which specifically address “the procedure” to be followed “in a proceeding in relation to matters that have happenedbefore the repeal”.

Section 44 of the

Interpretation Act places a premium on following the procedures set out in the new enactment – inthis case, the procedures prescribed by Parliament in the Act to amend. [37] In terms of s. 44 of the

Interpretation Act, there is nothing in the Act to amend which prevents prosecutions of existing “over80” charges from being conducted in conformity with that new enactment. Since December 18, 2018, trials of existing “over 80”charges can proceed in a manner consistent with the Act to amend by applying the presumption of accuracy set out in the newly enacteds. 320.31(1) of the Code and by not applying the presumption of identity in the now repealed s. 258 of the Code.

As I explained above,the Code offers an effective alternative documentary method for the Crown to prove the “over 80” element of the offence in the absenceof s. 258’s presumption of identity. The plain wording of ss. 14 and 32 of the Act to amend persuades me that Parliament intended trialsof existing “over 80” charges to proceed in accordance with the new presumption in s. 320.31(1) with an appropriate adaptation of otherprovisions of the Code to bridge any evidentiary gap created by applying the new enactment to transitional cases. [38] I have also rejected the Crown’s proposed application of s. 43 of the

Interpretation Act to suspend the repeal of s. 258’sevidentiary presumption because of my concern that it is overreaching. Such an overly broad approach to s. 43 of the

Interpretation Actwould risk compromising Parliament’s ability to modify other evidentiary and procedural provisions, such as those utilized inprosecutions involving vulnerable victims and vulnerable witnesses. If s. 43 of the

Interpretation Act is capable of authorizing asuspension of Parliament’s express repeal of the evidentiary presumptions in s. 258 of the Code for charges already in the system, s. 43would equally serve to suspend the otherwise immediate effect of legislative amendments to ss. 276, 278 or 486 of the Code. In otherwords, the Crown’s approach to s. 43 in this case would require that any legislative amendments to procedural protections afforded tovulnerable witnesses be held in abeyance until all existing charges have gone through the trial process using the repealed versions ofthose procedural provisions. I am not prepared to read the

Interpretation Act in a manner which would allow for such a result. Not onlywould such a reading of ss. 43 and 44 of the

Interpretation Act hamper Parliament’s legislative ability to modify the rules of evidenceand criminal procedure in a timely way, it would also run contrary to the common law principles which those sections of theInterpretation Act were intended to reflect. When Parliament sees fit to repeal an evidentiary provision, there is nothing in ss. 43 or 44 ofthe

Interpretation Act that was intended to extend the life of that repealed evidentiary provision to post-repeal trials of offencescommitted prior to the repeal.

f) Conclusion: the evidentiary presumption in s. 258 was repealed on December 18, 2018 and was not available to the Crown at a trialof a s. 253 offence which commenced on January 23, 2019 [39] Having considered the principles of statutory

interpretation and the relevant provisions of the

Interpretation Act, I am left withthe clear and unambiguous wording of s. 14 of the Act to amend: “… sections 249 to 261 of the [Criminal Code] are repealed.” Parliament’s express repeal of s. 258 of the Criminal Code took effect December 18, 2018. While his charges arose prior to when theAct to amend came into force, Mr. Shaikh’s trial on those charges did not commence until after the legislative repeal of s. 258 had comeinto effect. As a result of s. 14 of the Act to amend, s. 258 of the Criminal Code was no longer in effect at the time of Mr. Shaikh’s trial.

In the absence of any expert opinion evidence relating Mr. Shaikh’s breath test results back to the time he is alleged to have been in careor control, I find that the Crown has failed to prove that Mr. Shaikh was “over 80” at the relevant time. In other words, I find that theCrown has failed to prove an essential element of the “over 80” offence beyond a reasonable doubt. Has the Crown proven that Mr. Shaikh was in care or control of the vehicle? [40] To prove that Mr.

Shaikh was in “care or control” of the vehicle at the relevant time, the Crown seeks to rely upon thepresumption of care or control set out in the former s. 258 of the Criminal Code. The presumption of care or control in s. 258(1)(a)provided that upon proof that the accused was found occupying the driver’s seat of a vehicle a court could presume that the accused wasin care or control of that vehicle. [41] To establish the precondition required to invoke the s. 258(1)(

a) presumption, the Crown relies upon Mr. Veira’s evidence thatMr. Shaikh was in the driver’s seat prior to the arrival of the police, and upon Cst. Chmelowsky’s evidence that he arrived to find Mr.Shaikh sitting in the driver’s seat. The defence conceded that the man who Cst. Chmelowsky found in the driver’s seat of the whiteMercedes was Mr. Shaikh but argued that Mr. Shaikh’s initial utterances to Cst. Chmelowsky rebutted the presumption of care orcontrol. With respect to Mr. Veira’s evidence, the defence submitted that there was some doubt as to whether Mr. Shaikh was the manwho Mr.

Veira had seen in that vehicle prior to the arrival of Cst. Chmelowsky and, thus, whether Mr. Veira’s observations of the man inthe driver’s seat of the white Mercedes were relevant to the issue of care or control. Briefly put, I have no doubt that the man who Mr.Veira saw in the driver’s seat of the white Mercedes was the same man who Mr. Veira had ejected from the pub minutes before. I amsatisfied beyond a reasonable doubt that Mr. Veira reliably identified that man to be Mr. Shaikh. Mr. Veira was familiar with Mr. Shaikhfrom the fact that Mr. Shaikh had been denied entry to the pub in the past and because Mr.

Shaikh was an employee of the same securitycompany with which Mr. Veira worked. There were no external conditions impeding Mr. Veira’s ability to observe Mr. Shaikh. I amsatisfied beyond a reasonable doubt that Mr. Shaikh was the one who Mr. Veira observed in the driver’s seat of the white Mercedes outfront of the building. Accordingly, I am satisfied that the Crown has proven that Mr. Veira saw Mr.

Shaikh sitting in the driver’s seat ofthe vehicle. [42] However, for the same reasons why the Act to amend has repealed the presumption of identity set out in the former s. 258 of theCriminal Code, I find that Parliament has also repealed the presumption of care or control that was contained in the former s. 258 of theCode. There is nothing in the wording of s. 14 of the Act to amend purporting to exempt any particular portion of the former s. 258 fromthe effect of being repealed by s. 14. [43] The absence of a statutory presumption of “care or control” does not end the matter.

In the absence of a presumption of “care orcontrol” arising from evidence of Mr. Shaikh’s occupation of the driver’s seat, the Crown can still seek to prove that Mr. Shaikh wasactually in care or control of the vehicle at the relevant time. In R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56, theSupreme Court of Canada explained what the Crown must prove to establish that a motorist was in care or control of a vehicle when thestatutory presumption does not apply.

The Court held (at paras. 33 and 34): In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in thisway: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk of danger to persons or property. The risk of danger must be realistic and not just theoretically possible: Smits , at para. 60.

But nor need the risk be probable , or even serious or substantial . [ 44 ] The Court in Boudreault went on to explain that, even in the absence of the s. 258 presumption of care or control, the “realistic risk” element of the offence is a low threshold (at paras. 48 and 49): I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger…. In this case, Mr.

Shaikh adduced no evidence to show that there was no realistic risk of danger associated with him sitting in the Mercedes while it was running outside the front entrance to the building. [ 45 ] As proof that Mr. Shaikh was actually in “care or control” of the vehicle, the Crown points to the evidence of Mr. Veira and Cst. Chmelowsky and their observations of the Mercedes while Mr. Shaikh was sitting in the driver’s seat. Regardless of whether Mr.

Shaikh had initially occupied the driver’s seat with an intention to drive home, the evidence satisfies me beyond a reasonable doubt that he was in care or control of the Mercedes from the time it was first seen by Mr. Veira to when Cst. Chmelowsky arrived to investigate. Even if I were to accept that Mr. Shaikh was not intending to drive the vehicle away from where it was stopped, he did much more than simply sit in the vehicle and wait for his friends to come out of the pub. While waiting for his friends Mr.

Shaikh chose to exercise care or control of that vehicle in a manner which created a real risk to the public. Despite the absence of evidence as to how the vehicle ended up in front of the building, the evidence showed that Mr. Shaikh was in charge of the vehicle as it sat there running. It was Mr. Shaikh who had allowed the vehicle to continue running. Moreover, the vehicle moved forward two times while Mr. Shaikh was in charge of it.

As the Supreme Court of Canada observed in Boudreault (at para. 41 ): … an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion -- without intending at that moment to do so -- may nevertheless present a realistic risk of danger. I accept Mr. Veira’s concern that, in all the circumstances, Mr. Shaikh’s control of that vehicle presented a real risk to people entering and leaving the pub.

Accordingly, even in the absence of the statutory presumption in s. 258(1)(

a) of the Code, the evidence at trial satisfies me beyond a reasonable doubt that Mr. Shaikh was in care or control of the vehicle. Has the Crown proven beyond a reasonable doubt that Mr. Shaikh’s ability to drive was impaired by alcohol? [ 46 ] The defence did not seriously argue that the evidence failed to prove beyond a reasonable doubt that Mr. Shaikh’s ability to drive was impaired by alcohol. Mr. Veira’s opinion provided cogent evidence that Mr. Shaikh’s ability to drive was impaired by alcohol. Mr. Veira believed that Mr. Shaikh was too intoxicated to be admitted to the pub.

When he formed that opinion about Mr. Shaikh’s alcohol impairment, Mr. Veira already had more than a decade of professional experience in assessing the level of impairment of potential pub-goers based on brief observations of their physical symptoms. Mr. Veira had received professional training to assist him in making those assessments. I find Mr. Veira’s opinion about Mr. Shaikh’s alcohol impairment to be very reliable. It was also confirmed by the observations and opinions of the Cst. Chmelowsky, the police officer who dealt with Mr. Shaikh shortly after Mr. Veira.

The evidence at trial overwhelmingly proves that Mr. Shaikh’s ability to drive was impaired by alcohol. Conclusion [ 47 ] For the reasons set out above, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Shaikh was in care

or control of a motor vehicle at the relevant time. I am also satisfied that the Crown has proven beyond a reasonable doubt that, at the time he was in care or control of the vehicle, Mr. Shaikh’s ability to drive was impaired by alcohol. On the other hand, in view of my conclusion about the repeal of s. 258 of the Code on December 18, 2018 by virtue of the Act to amend , the Crown has not proven what Mr. Shaikh’s blood-alcohol concentration was at the time he was in care or control and so has not proven that his blood-alcohol concentration exceeded the legal limit. [ 48 ] I find Mr.

Shaikh guilty of impaired care or control and not guilty of care or control “over 80”. Released: “March 26, 2019” Signed: Justice Paul Burstein