R. v. Sumon, 2020 ONCJ 331

ONTARIO COURT OF JUSTICE CITATION: R. v. Sumon , 2020 ONCJ 331 DATE: 2020 07 24 Toronto Region BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMMED SUMON Before Justice L. Feldman Heard on Feb. 8, April 12, 16, May 7, July 7, Sept. 13, 2019 Reasons for Judgment released on July 24, 2020 A. Penny................................................................................................ counsel for the Crown J. Marchand............................................. counsel for the defendant Mohammed Sumon FELDMAN J.: [ 1 ] Mohammed Sumon entered not guilty pleas to Operation Impaired and Exceed 80.

It is alleged that when stopped for a Highway Traffic Act infraction, he displayed indicia of impairment warranting arrest and breath testing that indicated he had been driving while his ability to do so was impaired by alcohol and that his blood alcohol concentration (BAC) at the time was well over the legal limit. [ 2 ] Given certain Charter issues raised, the trial proceeded on consent as a blended hearing. The Crown called the arresting officer and breathalyzer technician in support of its case. Mr.

Sumon testified on a voir dire that his rights to counsel were infringed by the police. [ 3 ] This is also a transition case. Mr. Sumon was charged on March 31, 2018. The drinking and driving regime, set out in Code ss. 249-61, was repealed on Dec. 18, 2018. It had provided for the application of the presumptions of accuracy and identity in former ss. 258(1)(

c) and ( d .1). Bill C-46, the Amending Act, replaced this regime in s. 320 with Offences Relating to Conveyances. [ 4 ] A modified retroactive presumption of accuracy was written into the new s. 320.31(1). However, the new regime was silent on the presumption of identity, nor did the transitional provisions address its repeal. [ 5 ] Mr. Marchand, for the accused, submits that the breach of his client’s s. 10(

b) rights, including failure to provide him with the means of finding his own counsel and steering him to duty counsel, requires exclusion of the breath readings; that statutory

interpretation principles and a contextual and purposive reading of the new sections indicate that the application of the presumption of identity is not retrospective; and that there is a reasonable doubt the defendant’s ability to drive was impaired by alcohol. The Evidence [ 6 ] On March 31, 2018, at 4:50 a.m., Mr. Sumon was seen by P.C. Brian Miller turning left from Kingston Rd. onto northbound Markham Rd. on the wrong side of the concrete divide facing southbound traffic. The officer pulled him over. Mr. Sumon falsely said he had nothing to drink.

[ 7 ] P.C. Miller asked for his driving documents and observed that he was slow to react in retrieving them. He asked Mr. Sumon to step outside. The officer escorted him to the police cruiser where the defendant could be seen on the in-car camera leaning against the side of the vehicle. [ 8 ] P.C. Miller said he observed bloodshot eyes and smelled alcohol on his detainee’s breath. He demanded that the defendant provide a sample of his breath into a roadside screening device (ASD). Mr.

Sumon complied, registered a Fail and was arrested. [ 9 ] The officer gave him his rights to counsel and demanded he supply suitable samples of his breath into an Intoxilyzer instrument at the station. Mr. Sumon said he understood but did not want to call a lawyer, an indication he comprehended his rights, although the speed with which the officer raced through those rights gave me pause. [ 10 ] It was clear the defendant knew he was in legal trouble when he apologized and asked if there were any way this could be forgotten. He admitted he had been consuming alcohol at a friend’s home.

He said he was sorry for misleading the officer and promised never to drink and drive again. [ 11 ] The officer took Mr. Sumon’s cell phone from him. At 41 Division in the sallyport, P.C. Miller asked him if he wanted any numbers from the phone to contact a family member or a lawyer. He did not. [ 12 ] However, Mr. Sumon told Staff Sgt. Kurts, the booking officer, that he did not understand his rights to counsel that were provided at the roadside. He said he wanted to speak to a lawyer. He was told he could use the phone, but that if he did not have his own counsel a free legal aid lawyer would be made available.

He was not asked if he had a lawyer’s name in mind, nor was he offered access to the means of finding one. The defendant accepted the offer of duty counsel. [ 13 ] Mr. Sumon was then taken to the report room to await his breath tests. There he was again asked if he had a lawyer or wanted free duty counsel. He chose the latter. The defendant spoke to duty counsel. Afterwards. when asked, he told the arresting officer he was satisfied with the advice he had received. [ 14 ] Of note, the officer appears to be a Charter minimalist.

Unless his detainee asks for a specific lawyer, he does not inquire further, nor does he offer a phone book or access to the internet, including the Law Society of Ontario (LSO) website. [ 15 ] Mr. Sumon was taken into the breathalyser room at 6:53 a.m. On the video, he seemed to walk slowly, although with balance, and, as well, responded slowly to questions. [ 16 ] P.C. Jayme Prevost is a qualified breathalyser technician.

He testified that he noted certain indicia of impairment, including a strong odour of alcohol on the defendant’s breath, bloodshot and glossy eyes, that he seemed confused at times and that he asked repetitive questions. Mr. Sumon provided an initial breath sample of 291 milligrams. Between the tests he did not ask to speak to counsel. He provided a second sample of 282 milligrams. [ 17 ] To this point, the defendant had changed his mind about not consulting counsel, had spoken to duty counsel and received advice with which he said he was satisfied.

However, in the breath room, prior to the first test, he went off on a tangent regarding his s. 10(

b) rights, demanding that a lawyer be present during the procedure. It is unclear if he was confused, his judgment diminished by the effects of alcohol or he was malingering in a manner that echoed his appeal for sympathy at the roadside. [ 18 ] This is apparent in the defendant’s extended exchange with PC. Prevost, concerning his rights to counsel, reproduced here, in part: P.C. Miller: …I wanna go over – originally said you didn’t want to speak with duty counsel…You had that conversation, you told me that you’re satisfied with that…advice that counsel gave you, is that true? Sumon: Yeah P.C.

Prevost: And you understand that you don’t have to say anything if you don’t want to? Sumon: Yeah Prevost: So I’m told that you had a telephone call with duty counsel lawyer, the free lawyer, is that true? Can you confirm that? Sumon: Yeah Prevost: Okay, so again don’t tell me anything about that conversation…as a result of that conversation are you ready to comply with the demand to provide samples of your breath? Sumon: Pardon me? Prevost: As a result of speaking with that lawyer are you ready to go ahead with this test? Are you ready to comply with the demand to provide samples of your breath?

Sumon: Uh, I wanna speak with my lawyer please? Prevost: So you just told me that you spoke to duty counsel lawyer, is that correct? Sumon: Yeah Prevost: Okay, so we established that. As a result of speaking with the duty counsel lawyer, are you ready to provide samples of your breath into the instruments?

Sumon: Uh, I wanna speak to the lawyer, please. Prevost: Okay, so it looks like we’re going in circles here, okay… [ 19 ] It was not unreasonable for the officer to point out Mr. Sumon’s prior contact with duty counsel. It is possible he assumed obstruction on his detainee’s part. But he had to have been aware that, alcohol-induced or otherwise, Mr. Sumon was expressing a further need for independent legal advice. It is apparent the officer assumed once is enough.

The exchange continued: Prevost: So just to let you know you are legally obligated to provide at least two samples of your breath…that’s two samples that I, as the breath technician, deem suitable. So I have the ultimate determination as to whether or not I accept your breath samples… Prevost: Do you have any questions so far? Sumon: No, but, uh, I do want my lawyer here…before we get started. Prevost: Okay. Well, there’s not gonna be a lawyer physically in the room, you’ve had, you have had an opportunity to speak with a duty counsel lawyer. Sumon: Right Prevost: …and I think you told me that twice.

So there won’t be a lawyer right here in this room with you while you do this test. [ 20 ] I must give some deference to the intuition of this experienced officer that the request to have counsel present was a possible manipulation [1] . But the evidence also permitted an inference of misunderstanding or confusion in relation to which the officer made no inquiries. Rather, he shut Mr. Sumon down and continued: Prevost:…Okay? So what I’m gonna do now is I’m gonna give you some very simple instructions on how you’re gonna provide a sample of your breath.

Sumon: Mm-hmm [ 21 ] PC Prevost goes on to provide those instructions: Prevost: …I need you to keep blowing, keeping that sound on…and just go until I say stop, okay? Do you have any questions so far? I think everything is pretty simple. Sumon: Well, I mean I’m not…I’m not gonna blow into it until, until my lawyer’s here. [ 22 ] Although the instrument was not ready, P.C. Prevost chose not to at least offer his detainee further contact with duty counsel to clarify his legal obligations and the limits of rights to counsel. He went on: Prevost: Okay.

So what I’m gonna do is I’m gonna tee the machine up, then I’ll explain a few more things to you but, um, again you have spoken with a, with, uh your lawyer… Sumon: Mm-hmm Prevost: …or with duty counsel lawyer. Sumon: Mm-hmm Prevost: And again there’s no lawyers present in the room while the breath test is going on, okay? Sumon: Right Prevost: It takes a couple of minutes and we’ll get on our way, we’ll be ready to go. Sumon: Well, I’m still waiting for my counsel. Prevost: Which, uh, which counsel are you waiting for? Sumon: I have no idea. Prevost: You have no idea? Sumon: Yeah Prevost: Okay.

Did you provide Officer Miller with the name of the specific lawyer that you’d like to speak with? Sumon: No, he, he just spoke to me like when I was in the room. Prevost: Okay. So you spoke to duty counsel the free lawyer, is that correct? Sumon: (Nods head, yes) Prevost: Do you have your own personal lawyer?

Sumon: I, I don’t have a personal lawyer. Prevost: So who is it that you wanna speak with? Sumon: Well, I’m, I’m just not gonna say it until… Prevost: Okay, you, you – and absolutely you have the right not to say anything. Sumon: Right [ 23 ] Beyond obstruction or irrationality, Mr. Sumon was expressing confusion or misunderstanding, a possibility that seemed apparent to the officer, as he expressed later on in this exchange.

There was still time to permit a second opportunity for legal advice. [ 24 ] If he was not inclined to provide the means by which the defendant could find his own counsel, such as on the LSO website, perhaps because he felt intoxication may have clouded Mr. Sumon’s judgment, the officer could have placed another call to duty counsel. P.C. Prevost continued: Prevost: So just, I’ll just explain just because we have a couple of minutes here while the instrument’s doing its checks. Sumon: Mm-hmm Prevost: We, again you are legally obligated to do this test, you have to provide at least two samples of your breath.

Um, what will happen is if you refuse, is you will be charged with the offence of refusing to provide a breath sample into, into an approved instrument. Sumon: Yeah Prevost: Um, the penalty if you’re convicted of that offence, is the exact same as if you fail or as, as if you were, uh, convicted of straight impaired driving. So the, the penalty structure for drinking and driving offences, which include refusing a breath sample are the same right across the board, okay? So I’ll just… Sumon: But Prevost: I’ll just explain… Sumon: But what happens… Prevost:…my way of caution. Sumon: What happens to, uh, my lawyer?

Prevost: What happens to your lawyer? Sumon: Yeah Prevost: Well you, you told me, uh, you’ve told me that you don’t have a personal lawyer. You told me you don’t have the name of the lawyer. Sumon: Yeah [ 25 ] It is clear that P.C. Prevost gave no thought to asking if the defendant wanted to find counsel of his choice and to provide him with the means to do so.

It may be that he thought it would be a waste of time for his intoxicated detainee. [ 26 ] The officer’s following comment is, perhaps, unintentionally, revealing and indicates a narrow view of his implementational responsibilities as regards rights to counsel. That is, the detainee gets one try, even if it appears that he is unclear about his legal rights and obligations, and particularly if he is under the influence of alcohol. He said: Prevost: And you confirmed a number of times that you spoke to duty counsel. So you seem a little confused .

Sumon: Mm-hmm Prevost: Um, probably because of you’re, uh, you’re intoxication. Sumon: Right. But what, what – I don’t understand what the issue is. Prevost: I, I don’t understand what the issue is either, I, I don’t understand there is an issue at all. [ 27 ] These comments confirm that this officer gave no thought to providing additional access to counsel both to ensure an informed choice by the defendant and to protect his own constitutional flank. Sumon: So I can’t, I can’t have counsel in here right now?

Prevost: Well, you’ve, you’ve spoken to duty counsel, so you have spoken to counsel Sumon: Mm-hmm Prevost: But again I, I think that I said this a number of times, no there is no physical lawyer in this room while you do this test, it

doesn’t work that way. Sumon: I can’t have a lawyer in here? Prevost: In here no, you can’t. Sumon: Why not? Prevost: you know what sir, I’m not gonna get into that with you I think I’ve been more than thorough in everything I’ve explained to you. Sumon: Yeah Prevost: And then again you have confirmed a number of times that you did speak to duty counsel lawyer. So the instrument is almost ready to take your breath sample. Sumon: Yeah Prevost: And you, you’re gonna make whatever decision you feel is, is best for you.

But I, I have explained to you that you are required by law, you are legally obligated to do this test…. [ 28 ] That is the advice Mr. Sumon needed to hear, perhaps again, from counsel, not this officer, in order to move the process along and provide a clear basis for a charge of Refuse Sample should the defendant remain adamant. [ 29 ] P.C. Prevost went on to give directions to the defendant on providing a breath sample. Mr.

Sumon had questions: Prevost: Yeah, so I, I’ve explained it to you, I think three or four times now that you’re legally obligated to do this test… Sumon: Why am I legally obligated to do this? Prevost: Sir, I’m not gonna get – I wouldn’t get into this with you. I’m not a lawyer, you have spoken to duty counsel. Sumon: Okay Prevost: I’ve explained to you, that you are required by law to do this test, okay? So the instrument’s ready to receive your breath sample.

Sumon: Mm-hmm Prevost: So if you could just sit up nice and straight for me, hold the tube from about here, lips on the end, tight seal, take a nice deep breath, start to blow you hear the sound come on. And I need you to keep that sound on until I say stop, okay? Sumon: I don’t have a lawyer present…for me to do it. Prevost: Are you gonna do this test? Sumon: I’m not gonna do it. Prevost: You’re not, you’re not gonna? Sumon: No Miller: But you are gonna be charged with refusing… Sumon: Pardon me. [ 30 ] Prevost: I’m gonna read a few things to you, okay sir? Okay.

So I’ve got, um, March 31 st , 6:34 in the morning, okay? [ 31 ] Sumon: Yeah [ 32 ] Prevost: So subsequent to the demand read to you by the arresting officer, I also demand that you provide suitable samples of your breath into an approved instrument to enable analysis to be made to determine the concentration if any of alcohol in your blood. Do you understand? Do you understand? [ 33 ] Sumon: Mm. I’ll do the test. [ 34 ] Mr. Sumon hesitated once more. P.C. Prevost demanded that the accused comply or be charged. He reread the formal demand.

The defendant eventually provided breath samples, after crying and then begging the officer not to proceed and to let him go home. [ 35 ] Of significance, P.C. Miller testified, to his credit, that in hindsight, given this exchange in the breath room, he might have checked to see if the accused wanted advice from his own lawyer or would be satisfied with advice from duty counsel a second time. [ 36 ] The Defendant’s Version [ 37 ] Mr. Sumon is 31 years old. He develops software for an IT company.

He testified that at the roadside he declined counsel because the officer spoke too quickly, he felt confused and he had no time to contemplate his situation.

[ 38 ] There is some merit in his complaint. Under the stress of roadside detention and often under the influence, rapid and rote recitation of rights to counsel can leave some individuals uncomprehending. Later, at the booking hall, the defendant had more time and chose to speak to counsel. He did not know any names and says he did not know what to do, nor was he given any further information in that regard. He was rather quickly given a choice of his own counsel or duty counsel, picking the latter. [ 39 ] He spoke to duty counsel for 4 minutes, a relatively brief call.

He says he listened to what he was told but felt he did not adequately understand the process nor the use of the machine as it was explained to him. He says he still had questions. Given his subsequent behaviour in the breath room, it is doubtful, as he suggests, that he did not know he could ask duty counsel about the process or whether he had special knowledge in this area of law. [ 40 ] Nonetheless, he demonstrated confusion about his rights and obligations during the breathalyser process, as considered possible by the breathalyser technician and conceded by the arresting officer. I accept he felt overwhelmed.

In the circumstances, I also accept Mr. Sumon’s evidence that he would have acted on an opportunity to consult his own counsel or even spoken to duty counsel a second time to answer his questions. Was There a s. 10(

b) Breach? – The Authorities [ 41 ] P.C. Miller offered the defendant use of his cell phone at the roadside to check for phone numbers. At the time, Mr. Sumon indicated he did not want to speak to counsel. The officer took his phone. [ 42 ] When booked, the defendant said that while he had no names, he wished to speak to counsel. Duty counsel was suggested by the arresting officer.

In the circumstances presented here, did the police fail in their implementation duties by not returning the defendant’s cell phone for him to use in searching for counsel of choice or offer other means of doing so? [ 43 ] Given the stress and power imbalance facing first-time detainees in drinking and driving cases, it comports with the notion of fairness that police adopt a practice similar to that in Alberta, as suggested by Burstein J. in Ali [2] , of providing an opportunity for the accused to search for his or her own counsel, should that be the choice. See also R. v.

Ferose [3] and Middleton [4] in that regard. However, but for particular circumstances warranting such an approach, such as a detainee carrying mental illness [5] , that is not the state of the law in Ontario. [ 44 ] In Ruscica , McKelvey J. noted from the authorities that making resources available to the detainee to identify and connect with private counsel is not routinely required [6] .

More recently, Justice Akhtar reinforced this principle in Persaud , finding support in appellate authority, in concluding that there was no obligation on the police to provide a phone book, internet access or other search materials in the absence of a request from the detainee [7] . [ 45 ] Justice McKelvey also dealt with the complaint that the accused was ‘steered’ to duty counsel. In Ruscica , the accused accepted an offer of access to a free legal aid lawyer after indicating he did not know any private lawyers.

The court followed prior authority [8] in concluding that where a detainee tells police he has no specific lawyer to call and then accepts an offer to contact duty counsel, the requirements of s. 10(

b) have been met [9] . In Persaud , Justice Akhtar returned to first principles in asking whether the police interfered with the accused’s right to a reasonable opportunity to consult counsel of choice by informing the detainee of the availability of free legal advice. Following a review of appellate authority [10] , he concluded they did not. [ 46 ] Mr. Sumon was told he had the right to contact any lawyer he wished before being invited to speak to duty counsel.

As in Clarke [11] , he gave no indication he did not understand this right, made no complaint on being directed to duty counsel and failed to assert his wish, only later expressed, to speak to a specific lawyer. Regarding access to private counsel, I find no implementation breach here to the point of entry into the breathalyser room. Further Opportunity [ 47 ] However, the failure by P.C. Prevost to allow additional contact with duty counsel is problematic. Mr. Sumon’s time with duty counsel was brief. He had further questions.

Importantly, the extended exchange in the breath room permits the inference that the defendant was uncertain about his rights and obligations. P.C. Prevost thought he might be confused. P.C. Miller, in hindsight, might have done things differently. [ 48 ] The authorities contemplate situations in which a detainee requires a further opportunity to have the assistance of counsel. In Sinclair , the Chief Justice and Charron J. said that where the requirements of s. 10(

b) have been met, but the defendant presents as confused, the police can provide further access to a lawyer where there are “objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.” [12] [ 49 ] I am persuaded on this evidence that the defendant was probably confused about the process and sought further clarity, for which there was an opportunity within the statutory time limit facing the breathalyser technician, at least for assured contact in short order with duty counsel. [ 50 ] In Badgerow [13] , Simmons J.A. said that although not expected to read a detainee’s mind, the police need reasonably interpret what he or she says that might, “raise a reasonable prospect that the accused has not exercised his or her s. 10(

b) rights”. [ 51 ] In this case, given the probable confusion, was it reasonable for Mr. Sumon to ask for a further opportunity to get legal advice that was readily available? I believe it was. On this evidence, the failure by P.C. Prevost to offer that opportunity was not reasonable and, in my view, infringed the defendant’s s. 10(

b) rights. Should the Breath Readings be Excluded Under s. 24(2)? [ 52 ] Under s. 24(2), where evidence is obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter , it will be excluded if the defence establishes on a balance of probabilities that in all the circumstances its admission would

bring the administration of justice into disrepute. The focus is not on a reaction to an individual case, but rather understood in Grant in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. The inquiry is an objective one. That is, what would a reasonable person, informed of all relevant circumstances and the values underlying the Charter conclude? [14] [ 53 ] Trial courts are instructed to assess and balance the effect of admitting the evidence on society’s confidence in the justice system based on the following three-pronged inquiry:

(1) The Seriousness of the Charter Violation [ 54 ] The concern here is that in the event of an infringement the admission of the impugned evidence would bring the justice system into disrepute by the court failing to dissociate itself from the “fruits” of the state misconduct. [15] [ 55 ] The seriousness runs on a spectrum from minor, technical and inadvertent to deliberate, egregious and reckless conduct that wilfully disregards Charter rights which would have a negative effect on public confidence in the rule of law. [16] [ 56 ] In this case, P.C.

Prevost was dealing with a detainee who might have been manipulative, but also possibly confused about his rights and the testing process, as the officer conceded. Regarding access to counsel, the officer felt once was enough, although he had the discretion and time to provide a further opportunity. [ 57 ] It surely would have made the process more efficient and avoided the spectacle of an officer engaging in a lengthy back and forth while himself providing the legal advice sought.

The irony is it might have firmed up the fulfillment of his constitutional obligation by ensuring that the defendant understood his own. [ 58 ] It is that misunderstanding here that infringed Mr. Sumon’s right to have a meaningful opportunity to make an informed choice whether or not to participate in the breath testing process. [ 59 ] The s. 10(

b) right is a fundamental Charter value. In McGuffie , Doherty J.A. held that deprivation of the right to counsel is serious.

He said that, “access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law”. [17] He considered advice of counsel as a “lifeline” for individuals in police detention. [18] [ 60 ] In words relevant here, Justice Doherty went on to say, in Rover , that, “Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedure to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained.

The psychological value of access to counsel without delay should not be underestimated.” [19] [ 61 ] I believe that P.C. Prevost was sincere in his rigid belief that he need not do more. That misunderstanding of Charter standards, however, does not equate with good faith, [20] and resulted here in an infringement, the seriousness of which favours exclusion of the breath readings.

It is not a question of punishing or deterring the police, but rather a recognition that damage has been done and the court is signalling that it does not condone the breach and by exclusion will prevent further disrepute to the administration of justice. [21]

(2) Impact on the Defendant’s Charter-protected Interests [ 62 ] This line of inquiry weighs the extent to which the breach impacts the protected interests of the accused on a spectrum of fleeting and technical to profoundly intrusive [22] . The more serious the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute [23] . [ 63 ] The infringement in this case is serious and impacted Mr.

Sumon’s right to have meaningful access to the advice of counsel in order to be able to make a fully informed decision about the risk of self-incrimination and his rights and obligations during the breathalyser process. The officer’s duty was not onerous. [ 64 ] Admission of this evidence would tend to diminish society’s interest in holding respect for Charter rights [24] . The importance of preserving the long-term repute of the justice system favours exclusion.

(3) Society’s Interest in a Trial on the Merits [ 65 ] This inquiry gives emphasis to the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where it is considered reliable and important to the prosecution’s case. In Grant , the court held that the exclusion of reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution [25] . [ 66 ] The breath test results are considered reliable evidence and their method of collection relatively non-intrusive [26] .

They are essential to the Crown’s case. This inquiry strongly favours admission. A Balancing of these Factors [ 67 ] P.C. Prevost’s violation of the defendant’s s. 10(

b) rights left him insufficiently informed of his rights and obligations and vulnerable to self-incrimination. In McGuffie , Doherty J.A. said that, “…if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…”. That is the case here. I would exclude the breath readings from the evidence. Does the Presumption of Identity have Retrospective Effect in Transition Cases? Positions of the Parties [ 68 ] Mr. Marchand, for the defendant, submits there is no ambiguity in s. 14 of Bill C-46, the Act to Amend, repealing Code ss. 249- 61, that would permit reliance on the

Interpretation Act (IA) to breathe retrospective life into the presumption of identity (POI),

extrapolating breath readings back to the time of driving. [ 69 ] He says there is only one plausible reading of the new legislation. That is, the presumption of accuracy (POA) in s. 320.31(1) is to apply to transition cases, while the POI, in former s. 258(1)(c), is simply repealed, rendering the procedural advantage afforded the Crown lost. [ 70 ] Counsel’s point is that absent ambiguity, the Crown cannot look to statutory

interpretation to divine Parliament’s intent regarding the availability of the POI in transition cases. He relies on Bell Express Vu [27] for that principle, effectively adopting the analysis of Burstein J. in Shaikh [28] , that the wording in s. 14 of the Act to Amend is unambiguous, that is, not reasonably capable of more than one meaning. In the result, he says, a plain reading of the wording, exclusive of statutory

interpretation, is to be adopted that would take identity retrospectivity off the table. [ 71 ] It follows, he says, that the reasoning in the entirety of post- Shaikh decisions of this court to the contrary, implicitly or explicitly relying on ambiguity to engage statutory

interpretation, rests on a flawed premise rendering those cases wrongly decided. [ 72 ] He says all is not lost. It is open to the Crown to adduce the evidence of an expert toxicologist to fill in the extrapolation gap for the remaining transition cases. [ 73 ] Ms. Penny, for the prosecution, submits that counsel’s focus on ambiguity as a prerequisite to look to statutory

interpretation in determining Parliament’s intent regarding use of repealed provisions in transition cases is misplaced. She says, rather, that ss. 43 and 44 of the

Interpretation Act (IA) govern the effect of a repeal in such cases. [ 74 ] She suggests Parliament’s intent is not ambiguous, merely silent on the retrospectivity of the POI. And that its retrospective application is consistent with a fair and liberal

interpretation of the new provisions in a manner that modernizes, simplifies and makes more efficient the investigation and prosecution of drinking and driving cases going forward. [ 75 ] Ms. Penny says this reasoning is at the core of the decisions of this court, post- Shaikh, that the POI is to be applied in transition cases. For the foregoing reasons, I agree with the Crown’s position. Analysis [ 76 ] I adopt the reasoning of my colleagues in multiple decisions [29] , relying on principles of statutory

interpretation and the IA , in concluding it is Parliament’s intent that the repealed POI in s. 258(1)© apply in transition cases. [ 77 ] It is a fundamental principle that the words of

an Act must be read in their entire context, in their grammatical and ordinary sense and harmoniously within the scheme and object of the Act, as well as the intention of Parliament” [30] . This principle of

interpretation “presumes a harmony, coherence and consistency between statutes with the same subject matter” [31] . It is also accepted that in its provisions, the Legislature does not intend to produce absurd results that are unreasonable, illogical or defeat the purpose of the statute [32] . [ 78 ] Put more fundamentally, as the Chief Justice said in Mabior , “… for all issues of statutory

interpretation, the basic question is what Parliament intended. That intention is discovered by looking at the words of the provision informed by its history, context and purpose” [33] . [ 79 ] As noted by my colleagues, these are practical, common sense principles that give context and purpose to the application of provisions of the IA regarding new or amended sections in statutes or the effect of a repeal in transition cases. [ 80 ] The authorities do not support the notion that, as asserted by the defence, ambiguity in the meaning of the words of a statute is a prerequisite to the application of these principles and the IA . It is only where there is ambiguity that other principles of

interpretation that include strict construction of penal statutes and the “Charter values” presumption receive application [34] . [ 81 ] In Clarke , the court affirmed the narrow Bell Express Vu principle that the absence of ambiguity “precludes the application of the interpretive assistance of Charter values, which only play a role if there is genuine ambiguity as to the meaning of a provision” [35] . [ 82 ] In the criminal law context, in Rodgers , Charron J. said that if the statute is unambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result [36] . In statutory

interpretation, common law principles and the IA are the starting point. This was affirmed more recently by Akhtar J. in Persaud [37] . [ 83 ] That was the approach taken by Rose J. in Porchetta , in discerning Parliament’s intent regarding use of the repealed POI in transition cases. His judgment set the framework within which this issue was resolved in this province and outside [38] . [ 84 ] Justice Rose looked to the

Interpretation Act to guide him, in particular, s. 43 that says the repeal does not affect any right, obligation or liability under the former enactment. He noted, as well, that s. 12 deems new provisions remedial, as suggested by Driedger, in the sense of being interpreted liberally to ensure achievement of its objects. And that s. 13 directs that the

preamble of an enactment be read to assist in “explaining its purport and object”, in this case, to simplify the manner of proof in relation to impaired drivers. [ 85 ] Justice Rose also considered prior appellate authority that looked to Parliament’s intent in hiatus cases following legislative amendments that prospectively altered or removed presumptions affecting proof of BAC [39] .

He concluded that the Legislature’s clear intent to simplify the law in this regard would render absurd the retention of the presumption of accuracy in legacy cases while making proof more difficult by wiping away the presumption of identity [40] . [ 86 ] In McAlorum [41] , Justice Latimer, as well, adopts the ‘sensible solution’ in prior appellate authority of relying on the IA to apply the POI in transition cases. He said, at para.16: “The history of these evidentiary provisions has been an attempt to create a fair and

efficient approach to the forensic issues that arise during attempts to reliably ascertain a motorist’s BAC at the time of driving.

The new provisions are a further attempt in this regard; the fact of their proclamation is no reason to take a contradictory approach to transitional cases that straddle the timeline of the old and new provisions”. [ 87 ] Justice Duncan reinforces this point in his usual succinct manner, in Yip - Chuck [42] , where he wrote that, “it is unimaginable that, after fifty years, Parliament would intentionally decide to repeal and discontinue that presumption for the last few months for which it would be required”.

He said the law supports the view that, unless a contrary intention appears, transition cases are to be continued as if nothing had changed [43] . [ 88 ] In McAlorum , Justice Latimer also points out that the application of Parliament’s intent to simplify the trial process would be rendered absurd, not to say inefficient, were the POI not to apply in transition cases and the Crown required to call expert toxicologists on an almost daily basis throughout the province to have the benefit of this evidentiary presumption [44] . [ 89 ] If near unanimity in the OCJ against the defendant’s submission is not enough, the issue is now beyond debate in this court given the recent and clarifying judgment in Persaud , in which Justice Akhtar analyzes this issue and affirms the correctness of POI retrospectivity in transition cases.

His reasons are cogent. I am bound by his decision [45] . [ 90 ] Justice Akhtar found Shaikh wrongly decided. He said that statutory principle requires that the Act to Amend be viewed in its entirety and that its objectives and the historical context of excess alcohol offences be considered.

The starting point, he said, was Parliament’s intent, in this case, to simplify the prosecution of impaired driving cases [46] . [ 91 ] Justice Akhtar relied on ss. 43 and 44 of the IA to conclude that it would be illogical to have the old regime of offences continue to be prosecuted without the accompanying presumptions [47] . He explained that Parliament’s express provision for a transitionary period for the POA was necessary given that there were additional safeguards and benefits for those accused charged before the repeal date, unlike the POI that applied only in transition [48] .

And as in this court, he was of the view that the decisions in Ali and Copley regarding Parliament’s intention not to frustrate the continuing prosecution of transition cases had application here [49] .

Finally, he agreed with Justice Latimer that the alternative was a costly and inefficient trial process [50] . [ 92 ] The POI is to apply retrospectively in the case at bar. [ 93 ] While not specifically argued by the defendant in this case, I would briefly comment on a related argument contending that, even if the POI is retrospective in transitional cases, its combination with the new POA creates an unconstitutional scheme.

In Raswan [51] , Justice Duncan offers an invaluable review of the chronology of amendments to the drinking and driving regime that have provided presumptive advantages to the prosecution, in the course of which he rejects the submission that concurrent application of the newly amended POA and the repealed POI is not legally sustainable. [ 94 ] I agree with his reasoning that the pairing of the old POI with the new POA is constitutionally sound and can operate on parallel tracks. On the one hand, the Crown must prove the requirements of s. 320.31 to have the benefit of an irrebuttable presumption of accuracy.

On the other hand, in transition cases, the prosecution has to prove the requirements of the old s. 258(1)(d.1) or (

c) to obtain the advantage of a presumption of identity that can still be rebutted by proof of mechanical or operator error, in this way sustaining the presumption of innocence and burden of proof.

Operation Impaired [ 95 ] This offence is made out where there is evidence of any degree of impairment of the driver’s ability to operate his or her motor vehicle ranging from slight to great [52] , although a slight departure from normal conduct would not be sufficient to convict [53] . [ 96 ] In Bush [54] , Justice Durno describes ‘slight impairment’ as a “reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for rules of the road” [55] . [ 97 ] Inexplicably, Mr.

Sumon drove on the wrong side of the road. His eyes were bloodshot and glossy. The odour of alcohol on his breath permitted the inference he had consumed alcohol [56] . He was slow to react in retrieving his documents. When escorted to the police cruiser, he was seen to lean against it. At the station, he walked quite slowly to the breath room. He had delayed or unfocused responses to questions and needed things repeated. He seemed confused at times. These are observations that precede the s. 10(

b) breach late in the breathalyzer process [57] . [ 98 ] The indicia of impairment are slight, but weighed together with the unexplained manner of driving, I draw the inference that the defendant’s perception and judgment were reduced in some measure by alcohol, putting the public at risk. The Crown has met its onus of proof on this count. There will be a finding of guilt. Released: July 24, 2020 Signed: Justice L. Feldman