Her Majesty the Queen - v. —, 2020 NBPC 3

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI Citation # 2020NBPC03 Between: Her Majesty the Queen - and — Tyson Underhill Before: Judge Cameron Date of decision: February 21, 2020 Appearances: William Morrissy QC - for the Crown Daniel Jardine - for the accused Introduction 1 . Tyson Underhill and Cst. James Sherwood of the Royal Canadian Mounted Police met as a result of Mr. Underhill's excessive speeding on December 14 11 ', 2018. Cst. Sherwood noted Mr. Underhill's vehicle travelling at 146 kilometres per hour in a 90 kilometres per hour zone. 2 .

The subsequent stop and the interaction between Cst. Sherwood and Mr. Underhill led to two breath demands, a failed attempt to contact a lawyer and ultimately charges of impaired operation of a motor vehicle and operating a motor vehicle with a level of alcohol in the blood of the driver that exceeded the limit established by the Criminal Code of Canada. 3 . Tyson Underhill had alleged that Cst. Sherwood violated his rights under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms (the Charter ).

These violations, he asserted, justified an exclusion of evidence obtained subsequent to the alleged breaches. I rejected those arguments in a decision delivered on October I lth, 2019. As a result, I admitted into evidence a Certificate of Qualified Technician (P-1) and a Subject Test Result from an Intox EC/IR II (P-2). 4 . The Accused alleges that as a result of changes to the Criminal Code that came into force after the stop of his vehicle that these exhibits do not provide the evidence necessary to convict him beyond a reasonable doubt. 2 Issues 5 .

Of course, the primary issue is whether the Crown has established all of the essential elements of one or both of the offences beyond a reasonable doubt. This decision is impacted by three questions. They are: a. What laws apply with respect to the evidentiary aspects of the offence contrary to s. 253(1)(b); b. What is required to meet the new requirements of s.320.31 (the new presumption of accuracy); and c. Has the evidence adduced by the Crown established these requirements. The Facts 6 . I detailed the evidence heard in this matter in my decision with respect to the alleged Charter violations. A

summary is required here, however, to set the context for my analysis of the issues. 7 . On December 14th, 2018, at approximately 6:45 pm near Renous, New Brunswick Cst. Sherwood was on routine patrol on Route 8 and operating his radar equipment when he noted a vehicle going toward Miramichi, New Brunswick. The vehicle was travelling toward him at what appeared to be a very fast rate compared to other vehicles he had encountered. The posted speed limit at the location that he encountered the vehicle was 90 km/h. When he checked his radar, he noted the vehicle was travelling at 146 km/h.

8 . He activated his emergency equipment, turned his police cruiser around, never losing sight of the target vehicle, and effected a traffic stop. The vehicle in question was a GMC pickup truck and the area of the stop was near the arena in Renous. 9 . Cst. Sherwood approached the driver side of the vehicle and noted the accused, Tyson Underhill, was the driver and lone occupant of the vehicle. Immediately upon speaking to the accused he noted a shotgun behind the driver. 10 . Upon noting the shotgun, Cst. Sherwood also noted ammunition on the console or the front passenger seat.

Both the shotgun and ammunition were within reach of the driver. 3 He also noted a beer can, which he believed to be a Bud Light, open and with foam around the mouth of the can. The beer can was located on the floor of the truck behind the driver but accessible to him. He finally noted that the accused had glossy eyes. The presence of the beer can, and the glossy eyes led him to believe that the accused might have been drinking. Cst. Sherwood could not smell alcohol from the accused's breath because he had a bad cold and was congested. 11 . Cst.

Sherwood asked the accused to exit the vehicle so that he could deal with the shotgun and beer can. He cleared the shotgun to ensure that it was not loaded and touched the beer can, which he noted was cold. The accused had walked toward the back end of the vehicle and after dealing with the beer can and shotgun, Cst. Sherwood joined him. 12 . Cst. Sherwood inquired whether the accused had been drinking, to which the accused replied he had one beer back at the shop or words to that effect, with no mention of when that occurred. As a result of his observations Cst. Sherwood made a demand pursuant to section 254(2)(

b) for a breath sample into an approved screening device (ASD). The demand was made at approximately at 6:47 pm. 13 . Cst. Sherwood, a qualified operator of the ASD, obtained a proper sample after several attempts and the ASD registered a fail. On the basis of this, and his other observations, Cst. Sherwood formed the reasonable grounds to believe that the accused was committing an offence under s. 253 of the Criminal Code of Canada , made a demand for breath samples pursuant s. 254(3) and arrested the accused. 14 . After reading Mr. Underhill the right to counsel and the police caution Cst.

Sherwood transported the accused to the Blackville RCMP detachment, where a qualified technician was located. 15 . After unsuccessful attempts were made to contact counsel, Mr. Underhill was turned over to Cst. Dean MacDougall, a qualified technician, and the accused provided two samples of his breath at 19:43 (7:43 pm) and 20:03 (8:03 pm). The results were 130 milligrams of alcohol in 100 milliletres of blood for both samples. A Certificate of a Qualified Technician was prepared and eventually marked as P- 1. A true copy of the certificate was served on the accused and he was released on a promise to appear.

A Subject Test Result from the approved instrument, the Intox EC/IR II, was introduced as P-2. 4 16 . Cst. MacDougall testified and said that he performed the test in the manner required and that the standard alcohol solution was certified by an analyst. He could not say what the certificate specifically said but that it was posted on the wall of the breathalyser room and certified the solution in question. I will return to the evidence of Cst. MacDougall later in this decision. Analysis What Legislation Governs 17 .

Tyson Underhill was stopped, and evidence gathered from him, including exhibits P-1 and P-2, on December 14th, 2018. On December 18th, 2018

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018 c 21 [Amending Act] significantly changed the provisions of the Criminal Code relating to alcohol-related driving offences. The question of whether or not these changes apply to the evidentiary and procedural framework in which this trial took place is the first question to be answered. 18 . There was no significant argument with respect to the question of which law applies to this case.

The parties did not address with any force the question of whether the amendments in the Amending Act applied to this case. 19 . This case is one that has been termed a transitional or transition case; that is one where the alleged offence occurred before the amendments in the Amending Act came into force, but the trial commenced after that date. It is apparent to me that Parliament intended that the amendments, specifically those in s. 320.310) of the Criminal Code , would apply to cases such as the one before me.

These provisions essentially replace the fowler "presumption of accuracy" which were found in section 258(1) (

d) of the Criminal Code . 5 20 . Section 32(2) of the Amending Act reads as follows:

20 . Section 32(2) of the Amending Act reads as follows: 32(2) Subsection 320.31(1) of the Criminal Code , as enacted by

section 15 of this Act, applies to the trial of the accused that is commenced on or after the day on which that

section 15 comes into force if the sample or samples to which the trial relates were taken before that date. 21 . This is a clear expression of legislative intent. Such transitional provisions indicate whether Parliament intends that a particular amendment would apply to cases already before the courts. It is apparent that in this case they did. 22 . I am supported in my conclusion by decisions across the country that hold that Parliament specifically intended that the new presumption of accuracy would apply to transitional cases.' As such, I find that s. 320.31 applies to the case before the court.

The Pre-Conditions to the Presumption of Accuracy 21.Counsel for the accused has argued that the presumption of accuracy in the new provisions requires the Crown to establish certain pre-conditions to the use of the evidentiary presumption of accuracy contained in s.320.31. They are that: a. before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; (

b) there was an interval of at least 15 minutes between the times when the samples were taken; and See R v McDermott, 2019 NSPC 70 , R. v. Goldson, 2019 ABQB 609 , R v Bahman, 2020 ONSC 638 , R. v. Porchetta, 2019 ONCJ 244 , R. v. Does, 2019 ONCJ 233 , R. v. McRae, 2019 ONCJ 310 , R. v. Fulkerson, 2019 ONCJ 335 and R. v. Chuck, 2019 ONCJ 367 . 6 (

c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood. 22. The requirements of (

b) and (

c) are not in issue but the accused submits that the Crown has failed to establish that system calibration check was within 10% of the target value of an alcohol standard that is certified by an analyst as there is no evidence of either the standard being certified by an analyst nor, if it was certified, that the sample was within 10% of the target value as the target value was not identified. As such, they submit the Crown has not established the presumption of accuracy. 25.

Counsel for the Crown submits that the viva voce testimony of the Qualified Technician has established the necessary pre-conditions and that the accused should be found guilty of the offence contrary to s. 253(1)(b). 0. In support of his position counsel for the accused provided two cases: R. v. Mundy, [2019] O.J. No. 1996 and R. v Heid 2019 ONCJ 352 . These are two cases amongst a growing number of decisions across the country dealing with the issues surrounding the change in the legislation. I have reviewed those decisions and I find the reasoning in R. v. Goldson , 2019 ABQB 609 persuasive. 26.

In Goldson , the Court, sitting as a

summary conviction appeal court, concluded that the preconditions of s.320.31 of the Code may be satisfied by evidence of the qualified technician, whether by way of viva voce evidence or by tendering a certificate of qualified technician. The Court found that "this

interpretation is consistent with Parliament's intention to simplify and streamline prosecutions." 2 27. Goldson is instructive in not only its result but also its analysis. The matter 2 R. v. Goldson , at para. 45 . before the Court involves the

interpretation of legislation and Goldson provides a useful guide to the

interpretation of legislation. The starting point is the modern approach to legislative

interpretation': "the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament"' 29. Justice Ho reviewed the legislative history of the predecessor to s. 320.31, ss. 258(1)(

e) and 258(1)(g), and noted that the new presumption of accuracy replaced the presumptions found in those sections: the presumption of identity and accuracy.'As she noted the question of whether the presumption of identity continues to exist was not before her, nor was it raised here. I would pause to note, however, that the weight of authority has held that the "presumption of identity" continues to be available for s. 253(1)(

b) offences." 30. The conclusion reached by Justice Ho, after a review of the approach to legislative

interpretation, the

preamble to the Amending Act, the context of the Amending Act, the Parliamentary debates and reports, and the historical treatment of the predecessor legislation, was that: In light of the object and the scheme of the Amending Act, it is my view that Parliament did not intend to place further evidentiary burdens on the Crown and

section 320.31(1)(

a) should not be interpreted to require the Crown to tender the certificate of analyst. Evidence from a qualified technician in the form of either viva voce evidence or a certificate of a qualified technician is sufficient,

provided the evidence identifies whether the alcohol standard was certified by an analyst. It was not the intention of Parliament to add arequirement on the Crown to tender additional evidence beyond that of the qualified technician." 3 Ostiguy v. Allie, 2017 SCC 22 (S.C.C.) at para 73; Bell Express Vu Ltd. Partnership v. Rex, 2002 SCC42 (S.C.C.) at para 26. 4 Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27, 154 D.L.R, (4th) 193 (S.C.C.), at para. 21 as quoted inGoldson, at para. 34. 5 R. v. Alex, 2017 SCC 37 (S.C.C.) at paras 17-18; R. c. St-Onge Lamoureux, 2012 SCC 57 (S.C.C.) at para 15. 6 See R. v.

McManus, 2019 ABQB 829, at paras. 101-108. 7 Goldson, at para. 50. 8 31. I also note that in Go/dson, the qualified technician testified that the approved certificate of analyst on the wall in the RCMPdetachment confirmed that the alcohol standard was certified. Justice Ho held that such testimony is subject to an exception to the hearsay rule and is admissible.8 I come to the same conclusion. 28. Cst. MacDougall's testimony with respect to the system blank test is also admissible and provides evidence of the establishment ofthe pre-condition in s.320.31(1)(a). 29.

I note that the conclusions of Justice Ho were recently accepted and adopted by another

summary conviction appeal court in R. v. Bahman9 where Andre, J. held: To the extent that McLeod J. concluded that documentary evidence was required as proof of the accuracy of the alcohol standardsolution, he erred in law in concluding that the technician's evidence was hearsay. This is not an error of mixed fact and law, as Mr.Bahman's counsel contends, since it is based on an error of law regarding the legal requirements for proving the alcohol standardsolution.

Given that the three preconditions ins. 320.31(1) were met, the trial judge should have accepted the viva voce evidence regarding the alcohol standard solution of the machine.10 The Burden of Proof 30. It is trite law that Mr. Underhill, like every other person charged with a crime, is presumed to be innocent, unless and until the Crownhas proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial, from beginning to end.The accused does not have to present evidence or prove anything.

Moreover, it is not enough for the Court to believe that he is probablyor likely guilty. Goldson, paras 56-74. 9 R. v. Bahman, 2020 ONSC 638 10 Bahman, at para. 20. 9 35. Proof establishing absolute certainty is not required of the Crown, nor is a doubt to be imaginary or frivolous.' The reasonable doubtstandard, however, falls much closer to absolute certainty than to proof on a balance of probabilities. 36.

It is crucial for a me not to forget the fundamental and intertwined principles that everyone is presumed innocent, that the burdenrests with the Crown and that the burden can only be displaced on the basis of proof beyond a reasonable doubt. It is not enough for acourt to believe that an accused is probably or likely guilty. In assessing whether the Crown has met its burden the court must considerthe evidence as a whole. 37. The Crown need not prove all of the facts in its case beyond a reasonable doubt. The Crown is required only to prove the essentialelements of the offence beyond a reasonable doubt. 38.

The essential elements of the offence contrary to section 253(1)(

b) are, with respect to the actus reus are: (1) the consumption of alcohol, followed by; (2) the act of driving or being in care or control of a motor vehicle; and (3) the performance of the act at a time when the proportion of alcohol in the driver's blood exceeds 80 milligrams of alcohol in 100millilitres of blood.' 39. The wens rea of the offence is satisfied by proof of the voluntary consumption of alcohol.13

40. Section 253(1)(

a) is a legally distinct offence. The actus reus is the operation of a motor vehicle and, at the time of the operation, theaccused's ability to operate a motor vehicle n R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 12 R. v. MacCannell, (1980) (ON CA), 54 C.C.C. (2d) 188, at para. 6. 13 12. v. MacCannell, at para. 16 10 was impaired by alcohol or a drug. The mens rea in that case is also established by the voluntary consumption of alcohol.14 Application of the Law 41. The evidence of Cst. Sherwood establishes that on the date and place specified in the information Tyson Underhill was operating amotor vehicle.

There is no real dispute about these elements. The question in issue is whether at the time of that operation he hadconsumed alcohol such that the quantity of alcohol in his blood exceeded 80 milligrams of alcohol in 100 milliletres of blood or if hisability to operate a motor vehicle was impaired by alcohol. 42. With respect to the offence contrary to s. 253(1)(b), P-1 establishes that at the time the breath samples were taken the accused had ablood alcohol concentration of 130 milligrams of alcohol in 100 milliletres of blood.

If the pre-conditions to s.320.31 have been met theresults of those analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time. 43. Cst. MacDougall, a qualified technician testified he operated the approved instrument. He described that before each sample heconducted a system blank test the value of which was 0, which indicated to him the instrument was functioning properly. It is also avalue that is not more than 10 milligrams of alcohol in 100 milliletres of blood.

He also indicated that a sample of known alcoholstandard is introduced into the instrument to ensure that the results are the same as the known alcohol standard. Cst. MacDougalltestified that this standard was certified by an analyst as evidenced by a certificate on the wall of the breath test room. 14 R. v. King, (SCC), [1962] S.C.R. 746 11 44. P-2 is, according to the testimony of Cst. MacDougall, a printout from the Intox EC/IR II, the approved instrument used in this case.Pursuant to s. 320.33 that document is "evidence of the facts alleged in the document".

In addition to setting out the date, time, andresults of each of Mr. Underhill's breath tests, this printout also details: the alcohol standard manufacturer, the alcohol standard lotnumber, the alcohol standard expiry date, and the system blank and calibration check test results, which were 82 and 82 respectivelyagainst the standard results of 81 and 80. Coupled with the evidence of Cst. MacDougall P-2 establishes that the pre-conditions ofs.320.31(1) have been met. 45.

Given the above, and based upon the evidence, including the Certificate of a Qualified Technician marked as P-1 and the SubjectTest Result from an the approved instrument, the Intox EC/IR II, marked as P-2, I find beyond a reasonable doubt that on December14th, 2018, at or near Renous, New Brunswick, Tyson Underhill was operating a motor vehicle and at the time of such operation he hadconsumed alcohol such that the quantity of alcohol in his blood exceeded 80 milligrams of alcohol in 100 milliletres of blood. 46.As such, I find that the accused guilty of the offence contrary to s. 253(1)(

b) of the Criminal Code of Canada. 47. With respect to the offence under s. 253(1)(

a) the only issue remaining to determine, based upon my findings above, is whether there is proof beyond a reasonable doubt of the impairment of the accused's ability, to any degree, to operate a motor vehicle.15 The evidencein this case certainly indicates consumption: the presence of a beer, the admission of consumption, the glossy eyes, the smell of alcoholnoted by Cst. ' R. v. Stellato (1993), (ON CA), 18 C.R. (4th) 127, 78 C.C.C. (3d) 380; affirmed (SCC), [1994] 2 S.C.R. 478, 90 C.C.C. (3d) 160 12 MacDougall.

Beyond excessive speeding, however, there was no evidence that the alcoholconsumption was, at the time of driving, impairing. 48.While the certificate readings indicate the presence of alcohol they cannot be used to prove impairment without some expert testimony.16Given this I am not satisfied beyond areasonable doubt that the accused's ability to operate a motor vehicle was impaired and I findhim not guilty of the offence contrary to s. 253(1(a).

Cameron 16 R. v. Letford, (2000) (ON CA), 150 C.C.C. (3d) 225 (Ont.CA), at para. 22 13