R. v. Williams Date:, 2011 BCPC 23

Citation: R. v. Williams Date: 20110201 2011 BCPC 0023 File No: 32187 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS EDMUND WILLIAMS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WOOD Counsel for the Crown: I. Wiebe, K. Pasiuk, L. Ruzicka, B. Tomlin Counsel for the Defendant: R Morahan Place of Hearing: Duncan , B.C. Date of Hearing: July 8, August 24 & November 8, 2010 Date of Judgment: February 1, 2011 INTRODUCTION [ 1 ] Dennis Edmund Williams is charged under s. 253(1) (

a) and (

b) of the Criminal Code with having the care or control of a motor vehicle whilst impaired and after having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The issues arising on the evidence as a whole, all of which was heard in the course of a voir dire , are:

a) Whether Mr. Williams’ s. 8 rights were violated by the investigating officer;

b) Whether the investigating officer had objectively reasonable grounds to support the suspicion pre-requisite to the s. 254(2)(

b) demand;

c) Whether Mr. Williams’ waiver of his right to counsel was valid; and

d) Whether the s. 254(2)(

b) demand was unconstitutional by reason of the decision in R. v. Jaycox , #31173, Duncan Registry, July 8,

2010. THE EVIDENCE [ 3 ] At approximately 20:20 hrs. on August 27, 2009, the South Island Traffic Services Unit of the RCMP was conducting a check stop of all vehicles passing through the traffic circle located at the intersection of Gibbins Road and Lake Cowichan Road in North Cowichan. Mr. Williams was stopped as he approached that circle in an easterly direction on Gibbins Road in his jeep Cherokee. [ 4 ] Const. Sampson approached the open driver’s window of the jeep and asked Mr. Williams for his driver’s licence.

As he did so he leaned his head part way through that open window such that his nose was inside the vehicle at which point he detected what he described as a “fresh” odour of liquor. It is this action which is said to constitute a “sniff search” of either Mr. William’s person or his vehicle in violation of his right to be secure from unreasonable search or seizure. [ 5 ] The officer asked Mr. Williams how much he had had to drink that day. Mr. Williams’ reply was “Nothing.” Believing he had a duty to investigate further the source of the fresh odour of liquor, Const. Sampson asked Mr.

Williams to drive his vehicle onto the centre portion of the traffic circle. Instead of following that direction, Mr. Williams began to pull the jeep over to the right hand side of the road in the circle itself. Only after Const. Sampson repeated his instruction was it followed. [ 6 ] As there was a passenger in the right front seat of the jeep, he asked Mr. Williams to step out and walk to the rear of the jeep. Mr. Williams complied with this request and as he did so the officer observed no physical signs of impairment. [ 7 ] Once at the rear of the jeep, Const. Sampson asked Mr. Williams to blow into his face.

Mr. Williams responded by blowing to one side. The officer repeated his request following which Mr. Williams blew lightly in his direction. Const. Sampson testified that he then smelled a moderate odour of liquor on Mr. Williams’ breath. As well he noted Mr. Williams to have what he described as watery eyes. When cross examined, Const. Sampson was unable to identify the type of liquor he said he smelled on Mr. Williams’ breath and he also acknowledged that he did not think it would be possible to tell the difference between the fresh smell of alcoholic and non alcoholic beer.

This evidence forms the basis of the argument the officer’s suspicion, that Mr. Williams had alcohol in his body, was not objectively reasonable. [ 8 ] Based on the odour of liquor on Mr. Williams’ breath, his watery eyes and, “to some extent” on his failure to follow directions, Const. Sampson formed the suspicion that Mr. Williams then had alcohol in his body. However, before acting on that suspicion, he asked Mr.

Williams to walk to the front of his police car which was parked just south of the south sidewalk of Gibbins Road, approximately 6 or 7 feet from the eastbound lane of that road as it joins the traffic circle. He watched as Mr. Williams walked that short distance and again noted no physical signs of impairment. Satisfied that he did not then have grounds to make a s. 254(3)(a)(

i) demand, Const. Sampson read the s. 254(2)(

b) demand. It was then 20:25 hrs. [ 9 ] Mr. Williams followed the instruction given to him with regard to providing a suitable sample into the approved screening device. The result was a “fail.” At that point he was asked if he had had anything to drink in the previous 15 minutes, to which he replied that he had his last drink at lunch time. Const. Sampson then formed the opinion that Mr. Williams had, within the preceding 3 hours, committed an offence under s. 253(1) of the Criminal Code and he immediately advised Mr. Williams that he was being detained for impaired driving. Mr.

Williams was searched for weapons and placed in the back seat of the officer’s police car. [ 10 ] Commencing at 20:27 hrs, Constable Sampson read Mr. Williams his rights under s. 10(

a) and 10(

b) of the Charter : I’m detaining you for impaired driving. It is my duty to inform you that you have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a Legal Aid duty lawyer who can give you legal advice in private. This advice is given without charge, and the lawyer can explain the legal aid plan to you. If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number. [ 11 ] When asked if he understood, Mr. Williams’ response was “I understand.” Const.

Sampson then asked Mr. Williams if he wanted to call a lawyer. The response was, “No, I’m fine.” Mr. Williams testified that he is hard of hearing in his left ear, that which was closest to Const. Sampson as the latter read the s. 10 Charter advice, and that as a result of the noise from traffic passing by he did not hear that he had, as he put it, a right to free legal counsel. He said he understood only what he had heard and that because he was broke and could not afford a lawyer he said he did not want one.

The issue with respect to his waiver of his right to counsel is based, in part, on this evidence. [ 12 ] Immediately upon Mr. Williams advising he did not want a lawyer, Const. Sampson read the s. 254(3)(a)(

i) demand. When finished, he asked Mr. Williams if he understood. The reply was, “I understand.” [ 13 ] Constable Sampson next advised Mr. Williams that his driver’s licence was suspended for 24 hours and that he would be served the paper work associated with that suspension at the detachment offices. Mr. Williams testified that from this advice he understood that the “jeopardy” he was facing at that point was simply a 24 hour suspension. In his words, he could “handle” a 24 hour suspension and having his car towed. [ 14 ] At 20:33 hrs. Const. Sampson and Mr.

Williams departed the scene for the North Cowichan Duncan RCMP Detachment offices. They arrived at 20:39 hrs. During the drive, Const. Sampson noted what he described as a strong odour of liquor inside the police vehicle. Once installed within an interview room, Const. Sampson asked Mr. Williams if he wished to speak with either Legal Aid duty counsel or a private lawyer of his choice. Mr. Williams replied “No.” Const. Sampson then said: “If at any time you wish to speak to a lawyer, please tell me. Do you understand?” to which Mr. Williams replied, “Yes.” Mr.

Williams testified he didn’t think he needed a lawyer because he had accepted the fact he was going to get a 24 hour suspension. The issue with respect to his waiver of counsel also relies on this evidence. [ 15 ] The balance of Const. Sampson’s investigation is not germane to any of the issues raised. The observation periods passed without incident, and samples of Mr. Williams’ breath were obtained at 21:03 and 21:26 hrs. respectively, following which he was

served with the necessary paper work, including a copy of the Certificate of a Qualified Technician which was marked Exhibit “A” onthe voir dire. DISCUSSION (

a) Was Mr. Williams’ right to be secure from unreasonable search or seizure violated? [16] Mr. Williams was stopped, and therefore detained within the meaning of that term as found in s. 10 of the Charter, pursuant tothe authority vested in Const. Sampson by s. 73 of the Motor Vehicle Act, 1996 RSBC, c. 318: 73.

(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requestedto stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. [17] When, as in this case, a detention results from a random check stop, it is necessarily an arbitrary detention, but nonetheless onethat is justified under s. 1 of the Charter when, again as in this case, the stop is undertaken for legal reasons related to safety on highwayssuch as checking the driver’s licence and sobriety and the mechanical safety of the vehicle; R v.

Ladouceur, (SCC),[1990] 1 S.C.R. 1257. Implicit in the statutory stop authority found in s. 73 of the Motor Vehicle Act are those police powers necessaryto the effective exercise of the purposes underlying that justification: R v. Orbanski, [2005] 2 S.C.R. 196. [18] As pointed out in Orbanski, under s. 73 police officers have not only the power, but also the duty, to check the sobriety ofmotorists in circumstances such as those that prevailed on the evening of August 27, 2009, when Mr. Williams encountered the checkstop in question. When cross examined, Const.

Sampson stated: Every vehicle that I stop I will - - I will smell and so should every police officer that stops a vehicle. [19] I agree with that statement and am satisfied that by protruding his nose some 3 to 4 inches inside the driver’s window of Mr.Williams’ jeep, Const. Sampson was merely exercising a power implicit in the authority given to him in s. 73 of the Motor Vehicle Act,as a peace officer, to check Mr. Williams’ sobriety. If by doing so he engaged in a search of either Mr.

Williams or his vehicle, contraryto s. 8 of the Charter, and I do not find it necessary to agitate all the nuances of that interesting question, I am satisfied that such searchwas justified under s. 1 of the Charter for all of the reasons found in the authorities, including Ladouceur, Orbanski, R v. Smith (1996),(ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.) and R v. Weintz (2008), 2008 BCCA 233 233 C.C.C. (3d) 365(B.C.C.A.). (

b) Did Const. Sampson have objectively reasonable grounds to support the suspicion pre-requisite to the s. 254(2) demand? [20] As noted the essence of this argument was that, because Const. Sampson could not identify the type of “liquor” he smelledemanating from Mr. Williams’ breath and, specifically, because he offered the opinion he did not think the smell of non-alcoholic beerwould be any different from that of alcoholic beer, there was no objectively reasonable basis upon which the officer could form thesuspicion that Mr.

Williams then had alcohol in his body. [21] This submission ignores both the low evidentiary threshold required to support a reasonable suspicion and the role that suspicionplays in the unfolding investigation into a possible impaired driving offence. The requirement for a reasonably based suspicion does notmandate that the constellation of symptoms giving rise to that suspicion be inconsistent with any other possible conclusion. Const.Sampson smelled what he identified as liquor on Mr. Williams’ breath.

The fact there may be other substances that could produce asimilar smell is precisely why the next step in the process is logically the roadside breath test resulting from the s. 254(2)(

b) demand. If,in fact, the smell on Mr. Williams’ breath had emanated from non-alcoholic beer, the result of the ASD test would not have been a “fail”and Mr. Williams would quickly have been on his way. [22] In this case, in addition to what he identified as the moderate odour of liquor, Const. Sampson had Mr. Williams’ failure on twooccasions to follow simple directions and his watery eyes. Together with the ASD “fail” these symptoms produced an objectivelyreasonable suspicion that Mr. Williams had alcohol in his body. (

c) Was Mr. Williams’ waiver of counsel valid in all the circumstances? [23] As noted, there are two arguments advanced in support of the submission that Mr. Williams’ waiver of counsel was not valid. Both are entirely fact based and depend in each case upon what I find those facts to be. [24] The first relies on Mr. Williams’ evidence that, because of his hearing impairment and the surrounding traffic noise at the timeConst. Sampson read him his rights under s. 10(

b) of the Charter, he did not hear, and therefore did not know, about the 24 houravailability of advice from Legal Aid duty counsel. Although he did not directly so testify, given his evidence that he was broke at thetime, the inference is, that had he heard that portion of the s. 10(

b) advice, he would not have waived his right to counsel, but would havetaken advantage of that service. [25] Much effort was made by counsel, during cross examination of Const. Sampson and then later in argument, to detail the anatomyof the police car in which Mr. Williams was sitting at the time the Charter advice was read, in an effort to demonstrate that, in additionto his hearing impairment and the traffic noise, some portion of the structure of that vehicle would have stood between his left ear andConst. Sampson, and thus presented a third obstacle to his complete understanding of that advice.

I do not find it necessary to attempt areconstruction of that portion of the evidence. On cross examination he readily conceded that if that had been a problem he could easilyhave leaned forward so as to be closer to Const. Sampson as the latter spoke. [26] In the end, I must decide whether I accept Mr. Williams’ evidence that he did not hear, and therefore did not know, that free legaladvice was available to him through duty counsel. I note that at no time did he tell Const. Sampson that he had a problem with his leftear.

On re-examination he explained his reason for not doing so was because he is not always “afflicted” by it, which I took to mean thatsometimes the function of his left ear is impaired and sometimes it isn’t. At no time did he say to Const. Sampson that he was having

any difficulty hearing anything that was said. Indeed, on cross examination he acknowledged that he had no trouble hearing every otherinstruction given to him by the officer and no trouble hearing the officer ask him if he understood, a question he acknowledged heanswered in the affirmative on each occasion it was asked. What it came down to, on cross examination, was that the only portion of theentirety of the conversation that passed between them that night, which he did not hear, was that precise bit relating to Legal Aid dutycounsel. [27] In the circumstances I am unable to accept Mr.

Williams’ evidence that he did not hear, and therefore did not know, that he wasentitled to access Legal Aid duty counsel who was available without charge 24 hours a day. [28] By contrast, Const. Sampson testified that there was little in the way of traffic or traffic noise at the time he leaned into the backseat of his car and spoke directly to Mr. Williams face as he read the s. 10(

a) and (

b) advice from the card in his possession. Theevidence is clear that Mr. Williams responded affirmatively when he was asked if he understood what was said on that occasion. On thewhole of the evidence I am satisfied that Mr. Williams heard and understood the entirety of that advice. [29] The second ground upon which it is argued that Mr. Williams’ waiver of counsel was not valid relies on his evidence that, whenConst.

Sampson advised him his driver’s licence was suspended for 24 hours, he understood that to be the extent of his “jeopardy.” Again, although he did not expressly so testify, it is implicit from this evidence that had he understood he was facing the potential ofcharges under s. 253(1) of the Criminal Code, he would have exercised his right to counsel. I do not accept Mr. Williams’ evidence inthis respect. To begin with, on cross examination he acknowledged that he initially lied when asked how much he had to drink that daybecause he did not want to be investigated for impaired driving.

Thus, he knew the real jeopardy he was facing as soon as he wasstopped and approached by Const. Sampson. His explanation on cross examination, to the effect he thought the breath demand andsubsequent taking of the breath samples was simply an exercise designed to confirm the ASD result, was inconsistent with both hisdemonstrated knowledge of how impaired driving investigations unfold and the motivation underlying that initial lie. [30] Immediately upon forming the opinion that Mr.

Williams had committed an offence under s. 253(1) of the Criminal Code, Const.Sampson advised him he was being detained for impaired driving. Mr. Williams clearly told Const. Sampson that he understood the s.254(3)(a)(

i) demand when it was read to him immediately following the advice with respect to the reason for his detention and his rightto counsel. The s. 10(

a) advice, combined with the clear language of the s. 254(3)(a)(

i) demand, would have left him in no doubt as tothe nature of the jeopardy he was facing. [31] It follows that I am satisfied Mr. Williams waived his right to counsel on the night in question with full knowledge both of thenature of the jeopardy he was facing and the free legal advice available to him with respect to that jeopardy by accessing legal aid dutycounsel. (

d) Was the result of ASD test unconstitutional as a result of the judgment in R. v. Jaycox? [32] I should say at the outset that neither counsel takes exception to the conclusions in Jaycox that s. 254(2)(

b) as proclaimed isunconstitutional and that the appropriate remedy is to read in the words that have the effect of saving that

section from a declaration ofnullity under s. 52(1) of the Charter. The real issue that separates counsel is whether that remedy was effective in this case at the timeConst. Sampson required Mr. Williams to comply with the demand in that section. [33] Paragraph 174 of the decision in Jaycox sets out the basis upon which Judge Morgan concluded that, notwithstanding the remedyof reading in, Ms. Jaycox’s refusal to comply with the s. 254(2)(

b) demand read to her was lawful: [174] Ms. Jaycox refused to comply with an unlawful demand. Those facts distinguish her case from the cases presented by Crownwhere a stay of proceedings was determined to be an error when legislation could be saved by severance or reading in: see R. v. Fossenueve ...(1995), (MB KB), 43 C.R. (4th) 260; R. v. Curtis ...(1998), (ON CA), 123 C.C.C.(3d) 178 (OCA). Although in those cases the remedies to unconstitutional legislation had – in effect – retrospective application in thesense that the accused in those cases had to face charges on the remedied legislation, in Ms.

Jaycox’s case, she is not able to go back intime and comply with the demand that, at the time it was made, was in violation of s. 8 of the Charter. The demand was unlawful andconsequently, her refusal was not. I acquit her on the refusal charge. [34] Implicit in this decision is the conclusion that the remedy of reading in only takes effect prospectively from the date of thejudgment in which it is pronounced. [35] There are two branches to the argument advanced on Mr. Williams’ behalf.

The essence of the first is that I am bound to followJudge Morgan’s decision in para. 174 of the judgment, that the remedy of reading in was only effective prospectively from the date of hisjudgment. If that is so, Mr. Williams was not lawfully required to comply with that demand and the “fail” reading produced by theauthorized screening device could not be used as a basis for the opinion requisite to the subsequent s. 254(3)(a)(

i) demand made byConst. Sampson. [36] The second proposition, which flows from and necessarily relies upon the first, is that I am also bound to apply Judge Morgan’sconclusion, found in para. 134 of the judgment, that without the words required to salvage its constitutionality, s. 254(2)(

b) willinevitably result in an extension of the investigative detention required to determine whether the requisite suspicion for the demand canbe formed. In that event, the length of the detention will be extended beyond that within which the limitation of s. 10(

b) rights isjustified by the authorities, most notably R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640. As a result, Mr. William’s right toretain and instruct counsel was breached when that right was withheld from him prior to the s. 254(2)(

b) demand being made by Const.Sampson. [37] The preliminary issue which these arguments raise is whether, by virtue of the doctrine of stare decisis, I am bound to follow thedecision of Judge Morgan in para. 174 of Jaycox. If so, there is no need to agitate the secondary issue whether, in my view, that decisionought to be followed. [38] The starting point for consideration of that first issue is the decision of Wilson J. in Re Hansard Spruce Mills Ltd., 1954

253 (BC SC), [1954] 4 D.L.R. 590 (BCSC) where at p. 591 he noted: Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge ofthis Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) It is demonstrated that some binding authority in case law, or some relevant statute, was not considered (

c) The judgment was unconsidered. A nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies ofthe trial require an immediate decision without opportunity to fully consult authority. If none of these situations exist, I think a trial Judge should follow the decisions of his brother Judges [39] I must confess I have always considered this statement to be a rule binding on all judges to whom it is said to apply. However, ingiving oral reasons for the majority in R. v. Silbernagel, [2000] B.C.J. No. 734, Southin J.A. noted an exception; 4.

In my view Hansard Spruce Mills sets down a rule of practice, a series of rules for trial judges in the application of the doctrine ofstare decisis. It is not, however, a statute and it is not the law of the Medes and Persians.

When a question of constitutionality arises, atrial judge, whether a Justice of the Peace or anything else, must address his or her own mind to the question and come to a conclusion inthe absence of authority binding from above. [40] I am not sure whether the law of the Medes and Persians ever reached this lonely outpost of inferior jurisdiction, but I am surethat even had it done so the law of Southin J.A. would now prevail. Accordingly, I conclude that it is open to me to reconsider the issuewhether the remedy settled upon by Judge Morgan ought to take effect retroactively from the date that s. 254(2)(

b) was proclaimed inforce. However, consistent with the comity that necessarily governs the practice in all courts, I am of the view I should only reach adifferent conclusion if I am lead to that result either by authority which is binding upon me or by what I consider to be persuasive andcompelling authority that was not brought to the attention of Judge Morgan. [41] Both decisions referred to by Judge Morgan in para. 174 involved instances where the court purported to read down a legislativeprovision, as opposed to reading in words to solve a constitutional deficiency.

In both cases that remedy was given retroactive effectalthough in neither case did the court find it necessary to address the question whether that remedy operated retroactively orprospectively. [42] Neither counsel have offered any authority, and I have not been able to find any, that concludes the remedy of reading in oughtnot to take effect retroactively to the date a constitutionally deficient law was proclaimed in force.

Indeed, it would seem to me that sucha conclusion would be inconsistent with the application of the principles which justify reading in as opposed to striking down theimpugned legislative provision so long as doing so would further the obvious legislative objective of the impugned provision and doesnot involve an unacceptable intrusion into the legislative domain; see R. v.

Schachter, (SCC), [1992] 2 S.C.R. 679 atpara. 87. [43] In reaching his decision to apply the remedy of reading in to rescue the constitutionality of s. 254(2)(b), Judge Morgan referred tothe application of those principles in the majority reasons in R. v. Sharpe, 2001 SCC 2 [2001] 1S.C.R. 45. Although thequestion of when the remedy of reading in takes effect is nowhere directly addressed in those reasons, a review of the history of the casetogether with the ultimate judgment of the Court resulting from those reasons, is instructive in providing the answer to that question. [44] Mr.

Sharpe was charged in 1995 with 2 counts each of possession of child pornography for the purposes of distribution or sale,and simple possession of pornography, contrary to ss. 163.1(3) and 163.1(4) of the Criminal Code respectively. At the commencementof his trial in November of 1998, he raised a constitutional challenge to both sections alleging they breached his rights under s. 2(a), (b)and (

d) of the Charter. A voir dire was held confined to issues relating to that challenge and on January 13, 1999, Shaw J. deliveredjudgment dismissing the challenge to s.163.1(3), but declaring that s. 163.1(4) was inconsistent with the freedom of expression andpersonal privacy guaranteed by s. 2(

b) of the Charter and could not be justified under s. 1, with the result it was invalid under s. 52(1) of the Constitution Act, 1982; see R. v. Sharpe (1999), (BC SC), 22 C.R. (5th) 129. [45] The matter proceeded to the British Columbia Court of Appeal and, in a split decision issued on June 30, 1999, the majorityupheld the decision of Shaw J.; see R. v. Sharpe, 1999 BCCA 416 [2000] 1 W.W.R. 241. A majority in the Supreme Court ofCanada confirmed that, when read together with the definition of child pornography in s. 163.1 as proclaimed in force, s. 163.1(4) of theCriminal Code violated s. 2(

b) of the Charter and could not be saved by s. 1, but that it could nonetheless be upheld on the basis that thedefinition of child pornography in s. 163.1: ... should be read as though it contained an exception for (1) any written or visual representations created by the accused alone andheld by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused,providing it does not depict unlawful sexual activity and is held by the accused exclusively for private use. (para. 129, emphasis added) [46] As a result, the appeal was allowed and Mr.

Sharpe was remitted to stand trial on all charges. [47] The clear and unmistakable result of the judgment rendered in 2001 was that Mr. Sharpe went to trial on the same 2 chargesunder s. 163.1(4) which he originally faced in 1995, but with the scope or the reach of those charges limited by the restricted definition ofchild pornography.

That could only have happened if the remedy of reading in, which accomplished that restriction, was retroactive inits effect to the date on which the definition of child pornography in s. 163.1 was proclaimed in force. [48] Similar retroactive effect of the remedy of reading in resulted in the Ontario Court of Appeal decision in Haig and Birch v. TheQueen (1992), (ON CA), 9 O.R. (3d) 495, where sexual orientation was read into s. 3(1) of the Canadian HumanRights Act as a prohibited ground of discrimination and in the Supreme Court of Canada decisions in Miron v. Trudel,

(SCC), [1995] 2 S.C.R. 418, where words were read into the definition of ”spouse” in the Ontario Insurance Act so as to includeunmarried couples living in a long term common law relationship and Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493,where again sexual orientation was read into various sections of the Alberta Individual Rights Protection Act as a prohibited ground ofdiscrimination. [49] The explanation for the retroactive nature of the remedies of reading in and reading down was explained in the Federal Court ofAppeal decision in Neilsen v.

Canada (Employment & Immigration Commission) (1997), 215 N.R. 208, where at para. 14 the followingappears in the judgment of the Court: In both cases, the purpose is the same, i.e., to avoid the sanction of invalidity applicable to the provision or program as a whole, and inboth cases the technique does not vary, as courts simply invoke their duty and power of statutory

interpretation. There may be a greatdeal of fiction in that approach, but here again the interests of stability and continuity have prevailed. In any event, it remains that, inboth cases, the basis of the judgment is unequivocally that the provision must be understood, interpreted and read as the legislaturewould have written it, or rewritten it upon the advent of the Charter, had the legislature then been properly informed as to the limits ofits powers.

This, it seems to me does not allow any other conclusion than that the court means to go back to the time of enactment or thecoming into force of the Charter, in 1982. The Ontario Court of Appeal saw it that way in Haig, the reason for its intervention againstthe suspension order of the court of first instance being, in large part at least, to ensure that the benefit of the ruling would enure to thetwo complainants. And, likewise, the Supreme Court saw it that way in the sole “reading in” judgment it has rendered, to myknowledge, that of Miron v.

Trudel....The end result is somewhat surprising in that the “reading in” technique, which, I agree, is akin to ajudicial amendment, is retroactive while an amendment by a legislature is, in principle, prospective only. [50] That “somewhat surprising” result was ultimately confirmed by the Supreme Court in the highlighted portion of the quotationabove from para. 129 in Sharpe. The results in Sharpe, Miron v. Trudel and Vriend, that the remedy of reading in is retroactive in itseffect to the date the impugned legislative provision was proclaimed, are binding on me.

As well, the similar results in both Haig andNeilsen v. Canada are decisions of persuasive authority which were not brought to the attention of Judge Morgan. Thus, I am satisfiedthat it is open to me to disagree respectfully with Judge Morgan’s analysis in s. 174 of his judgment in Jaycox, and to find that the wordsread in to s. 254(2)(

b) have the effect of determining the proper construction of that

section with result that it should be read as thoughthose words were included at the time the

section was proclaimed in force. That conclusion also disposes of the second ground ofargument advanced on Mr. Williams’ behalf, based upon para. 134 of the judgment in Jaycox. [51] In the result, the s. 254(2)(

b) demand read to Mr. Williams was constitutionally sound and the “fail” result of the ASD test wasproperly used by Const. Sampson as a basis for his suspicion that Mr. Williams had alcohol in his body and, within the preceding 3hours, had the care or control of a motor vehicle with alcohol in his body. Accordingly, the evidence on the voir dire becomes evidenceon the trial and the Certificate of a Qualified Technician, marked as Exhibit “A” on the voir dire, is admissible and becomes Exhibit 1 onthe trial.

That certificate discloses readings of 160 and 140 milligrams of alcohol respectively in 100 millilitres of Mr. Williams’ blood at21:03 hrs. and 21:26 hrs. on August 27, 2009. CONCLUSION [52] With the evidence contained in Exhibit 1, I am satisfied the Crown has proved beyond a reasonable doubt that on August 27,2009, Mr. Williams had the care and control of a motor vehicle whilst he had a concentration of alcohol in his blood that exceeded 80milligrams of alcohol in 100 millilitres of blood and I find him guilty on Count 2 of information #32187. There will be a judicial staywith respect to Count 1.

Counsel should arrange a date for sentencing through the office of the Judicial Case Manager. ______________________ Judge J. Wood Provincial Court Judge