HER MAJESTY THE QUEEN — v. —, 2021 ONCJ 539

CITATION : R. v. Singh , 2021 ONCJ 539 DATE : October 13, 2021 ONTARIO COURT OF JUSTICE Central West Region- Brampton Ontario BETWEEN: HER MAJESTY THE QUEEN — AND — GURUPKAR SINGH Before Justice B Duncan Reasons for Judgment released on October 13, 2021 Patrick Quilty ............................................................................................... Counsel for the Crown Adam Little ............................................................................................

Counsel for the Defendant B Duncan J. : [ 1 ] The defendant is charged with impaired and exceed 79, offence date January 20 2020. [ 2 ] The trial was heard by me on August 11 and 12 2021. My decision on most of the issues raised was given at that time. One issue affecting only the exceed charge was adjourned for further submissions, ultimately heard on October 1. These are my reasons and decision on that issue. The facts: [ 3 ] The facts relevant to the issue can be very briefly stated: The Crown endeavoured to prove its case through reliance on the presumption of accuracy in

section 320.31 of the Code which requires proof of a calibration check that shows agreement within 10% of a target value of an alcohol standard that is certified by an analyst. But the Crown did not present a certificate of an analyst or call an analyst to give viva voce evidence. Rather it relied on the qualified technician’s certificate that included this statement with respect to each sample: Before taking the sample I conducted a system calibration test the result of which is 102 which is within 10% of the target value of the alcohol standard that was certified by an analyst.

The issue: [ 4 ] The issue is whether this statement contained in the QT’s certificate can provide the proof necessary to give rise to the

presumption or whether evidence from the analyst is required either viva voce or by certificate in order to prove that the solution wascertified by an analyst. [5] The core submission in support of the requirement for direct evidence from an analyst is that the QT’s statement regarding ananalysis that he did not conduct or even witness is hearsay. [6] The issue has been around for decades – long before the new legislation.[1] [7] In R. v. Gorgichuk, [1970] A.J.

No. 61 (C.A.) the Court held that the statement re the suitability and certification of the solutionin the QT’s certificate was hearsay and that the Crown was required to present the analyst or, more usually, a certificate of an analyst toprovide the required proof. Five years later the Ontario Court of Appeal disagreed in R. v. Ware, [1975] O.J. No. 705 (C.A.). The conflictwas eventually settled by the Supreme Court of Canada in R. v. Lightfoot, (SCC), [1981] 1 S.C.R. 566. The Ontarioview prevailed.

The statement in the QT’s certificate sufficed; there was no requirement for the analyst’s evidence or certificate. [8] In 1985 the relevant sections were amended in a way that lead a number of trial and

summary appeal courts to conclude that thelaw as stated in Lightfoot had changed and that an analyst’s certificate was now required. However, Courts of Appeal in Saskatchewanand later in Ontario rejected this position and re-confirmed the continued applicability of Lightfoot: see R. v. Harding, (1994) (ON CA), OJ 410 (CA). [9] The advent of the present legislation has again resurrected the argument. One of the early cases, if not the first, to deal with theissue was R. v. Flores-Vigil, 2019 ONCJ 192.

In that case the Crown attempted to present an analyst’s certificate, but it was ruledinadmissible for non-compliance with notice and disclosure requirements. The certificate also failed to state the target value of thestandard solution (para 15). While most of the judgment dealt with the court’s view that the target value of the alcohol standard had to beknown for a proper calibration, the court also said that evidence from the QT reporting that she had seen the analyst’s certificate andtestifying as to its content was hearsay and could not be given without tendering the certificate itself (pars 34).

This holding-that ananalyst’s certificate or evidence was required- became known as the Flores-Vigil issue. [10] Within days of the Flores-Vigil decision, the same argument was rejected in R. v. Does, [2019] OJ 233. There then followed aflood of cases at the trial level dealing with the issue, the over-whelming majority of which favouring the Does analysis and result. TheCrown has presented me with 31 decisions from the OCJ rejecting Flores-Vigil. [11] More importantly, there have now been at least three decisions from the Ontario Superior Court on

summary conviction appealthat have decided the issue in favour of the Crown: R. v. Bahman, 2020 ONSC 638; R. v. Porchetta, 2021 ONSC 1084; R. v. Dalal, 2021ONSC 2798. No court at that level has reached a contrary conclusion.

Stare Decisis: [12] The crucial preliminary issue here is whether I am bound by these decisions or, to put it more precisely, whether it is open to meto entertain a new analysis of the issue and come to a different conclusion than reached in the cases cited. [13] The defence concedes that these cases would normally be binding, but he submits that the Alberta Court of Appeal in R. v.Goldson, 2021 ABCA 193 , 2021 A.J. 709 has presented a new analysis not raised in any of the other cases and that he isentitled to present this analysis, together with supplementary augmentations of his own, to any court including this one, and receive afresh determination of the issue un-encumbered by the precedent of the earlier cases.

He seeks to present Flores-Vigil 2.0. [14] To be clear, counsel is not claiming that Goldson has over-riding impact on the Ontario cases. He is simply adopting the analysisfrom Goldson and augmenting it. He freely acknowledges that he would be making the same argument if Goldson had never occurredbut if he had thought of the new analysis himself. Goldson merely provides high authority supporting that new analysis. [15] Mr. Little presents three cases in support of his argument that it is open to this court based on the new analysis to re-visit anddepart from the otherwise binding precedent: R. v.

Evans, 2015 ONCJ 305; R. v. Cole, 2017 ONCJ 83; R. v. Richard, (ON SC), [1993] OJ 304. Evans and Cole – decisions of my former colleagues as judges of this court – dealt with the same issue –whether they were bound by a

summary conviction appeal decision in Kumarasamy that they regarded as inconsistent with SupremeCourt of Canada dicta in Borden and other decisions of the SCC and Court of Appeal. Stribopoulos J in Evans held that he was not boundby Kumarasamy because it did not “avert to the implications of Borden” and misinterpreted[2] the other decisions and was therefore perincuriam and not binding. Schreck J in Cole put it more simply: “I may be bound by Kumarasamy but Borden is more binding”. (para26). [16] I do not think these cases are of any assistance in the present issue.

They deal with situations in which the ostensible binding caseconflicts with one or more decisions from even higher courts that are also binding – a situation where the court cannot follow onebinding decision without failing to follow the other. That is not the case here where there is no second conflicting binding decision. [17] For its part, the Crown argues that the issue was settled in R. v. Sikora, 2021 ONSC 5869, where in a situation analogous to thepresent case, counsel on

summary conviction appeal was advancing a revised argument (Shaikh 2.0) on the same point as decided in anearlier

summary conviction appeal case, Persaud. However, as I read Sikora, the appeal was dismissed because the court agreed withPersaud and not because he was foreclosed by stare decisis from entertaining a new approach to the same point.[3] I do not find thatdecision to assist in the present case either. [18] More to the point are two judgments of the Supreme Court of Canada – Bedford, 2013 SCC 72 , [2013] SCJ No 72 andR. v. Comeau, [2018] SCJ No 15. [19] Bedford involved a wide-ranging challenge to the constitutionally of the prostitution provisions of the Criminal Code.

Some ofthe issues raised had been dealt with in a 1990 advisory Reference decision of the Supreme Court of Canada. The judge at first instancein Bedford received evidence and made findings on some points that conflicted with pronouncements in the Reference decision. The

Supreme Court dealt with the preliminary question of whether and under what circumstances a Charter issue can be revisited: Revisiting the Prostitution Reference 38 Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies. 39 The issue of when, if ever, such precedents may be departed from takes two forms. The first "vertical" question is when, if ever, a lower court may depart from a precedent established by a higher court.

The second "horizontal" question is when a court such as the Supreme Court of Canada may depart from its own precedents. 40 In this case, the precedent in question is the Supreme Court of Canada's 1990 advisory opinion in the Prostitution Reference , which upheld the constitutionality of the prohibitions on [page1127] bawdy-houses and communicating – two of the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(

b) of the Charter , and, if so, whether the limit was justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2( b ), it was a justifiable limit under s. 1 of the Charter . While reference opinions may not be legally binding, in practice they have been followed (G.

Rubin, "The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law" (1960), 6 McGill L.J. 168, at p. 175). 41 The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the evolution of the law in that area; the evidentiary record was richer and provided research not available in 1990; the social, political and economic assumptions underlying the Prostitution Reference no longer applied; and the type of expression at issue in that case (commercial expression) differed from the expression at issue in this case (expression promoting safety).

The Court of Appeal disagreed with respect to the s. 2(

b) issue, holding that a trial judge asked to depart from a precedent on the basis of new evidence, or new social, political or economic assumptions, may make findings of fact for consideration by the higher courts, but cannot apply them to arrive at a different conclusion from the previous precedent (para. 76). 42 In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.

Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence [page1128] that fundamentally shifts the parameters of the debate. [ 20 ] Five years later, the Court in Comeau expanded on Bedford. That case involved a prosecution under the New Brunswick Liquor Act for bringing liquor in excess of a certain amount into the province from Quebec.

The legality of the relevant law, submitted to be an unlawful interprovincial tariff, was governed by a century old decision of the SCC, Gold Seal v Alberta. The trial judge however received and accepted expert evidence to the effect that a deep dive into the historical record demonstrated that Gold Seal was wrongly decided. On that basis the trial judge declined to follow Gold Seal and acquitted. [ 21 ] On appeal, eventually to the Supreme Court, the Court dealt with the stare decisis issue at length (Pars 26-43) [4] and held that the trial judge had erred in failing to follow binding precedent.

In doing so the Court re-affirmed Bedford that stare decisis can be rebutted only in very narrow circumstances – and that a new

interpretation of a statute is not one of them: 42 Moreover, a difference in opinion about the

interpretation of a statutory provision does not evince a fundamental shift in the parameters of the debate. The debate and its parameters remain unchanged. The only change is the answer provided. [ 22 ] In this case, the issue is the same as previously decided. There is no new statutory provision; there is no new evidence. There is only a new

interpretation. In my view that does not unshackle this court from the bonds of precedent. [ 23 ] The appellant can present the new

interpretation (or any other argument) to a

summary conviction appeal court or to any higher court. Those arguments may be found to have merit and may be accepted. Or maybe not. However, in my view they are not open to re- consideration at this level of court in Ontario at this point in time. [ 24 ] I am bound to follow the binding authorities and find that the questioned component of the presumption of accuracy has been properly proven. [ 25 ] The defendant will be found guilty of this offence on the next court appearance. Released: October 13, 2021 Justice B Duncan