r v. ALISON DE COURCY-IRELAND, 2021 QCCQ 6593

R. c. De Courcy-Ireland 2021 QCCQ 6593 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-146103-160 DATE: July 19, 2021 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

ALISON DE COURCY-IRELAND Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] On October 4, 2015, at approximately 6:00 a.m., Ms. De Courcy-Ireland (the accused) was involved in a car accident. She had two passengers who were injured. The police were called to intervene. [ 2 ] After a peace officer ordered the accused to supply a blood sample for analysis, samples of the blood were taken and the results were subsequently analyzed. The lawfulness of the demand is not contested.

The accused consulted a lawyer before samples of the blood were taken. [ 3 ] The notice of intention to produce the Certificate of a Qualified Technician (“CQT”) was given to the accused the same day, even if the Certificate of Analysis (“CA”) was issued on October 19, 2015 showing a blood alcohol level of 117 mg of alcohol per 100 ml of blood. The CA was not, however, served on the accused then. [ 4 ] The information was sworn on December 21, 2016 and a summons returnable was issued.

The accused is facing two charges: operation of a motor vehicle while impaired by alcohol and causing thereby bodily harm to Zachary Kassian (ss. 253(1)

a) and 255(2) Cr. C.) and operation of a motor vehicle while having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood and caused an accident resulting in bodily harm to Zachary Kassian (s. 253(1)

b) and 255

(2.1) Cr. C.). [ 5 ] When the accused appeared in court, on February 7, 2017, her lawyer received disclosure of evidence, including the CA. [ 6 ] The Crown and the Defence both agree the evidence in this case is insufficient to prove the accused’s ability to drive a motor vehicle was impaired by the consumption of alcohol or drugs at the time of the offence. [ 7 ] Defence counsel submits that the statutory presumption in s. 258(1)

d) Cr. C. does not apply here as the accused did not receive the CA within six months from the taking of the samples. [ 8 ] No alternative evidence has been presented before the Court to prove the accused’s blood alcohol content exceeded 80 mg of alcohol per 100 ml of blood when the car accident occurred. [ 9 ] The Crown submits it is too late for the Defence to invoke the delay. The CA had been produced by the Crown without objection and the level of alcohol is part of the evidence. [ 10 ] The Court has to answer the following questions:

A) Considering there was no objection to the production of the CA into evidence, is the Defence precluded from arguing that the presumption in s. 258(1)

d) Cr. C. does not apply here?

B) If the Defence is not precluded, does the presumption in s. 258(1)

d) Cr. C. apply? ANALYSIS First issue in dispute : Is the Defence precluded from arguing that the presumption of s. 258(1)

d) Cr. C. does not apply here?

[ 11 ] In 2015, s. 258(1)

d) Cr. C. provides as follows: [1] (

d) if a sample of the accused’s blood has been taken under

section 254 or 256 or with the accused’s consent, evidence of the result of the analysis of that sample is conclusive proof, in the absence of evidence tending to show that the analysis was performed improperly, that the concentration of alcohol in the accused’s blood both at the time when the sample was taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, provided that (

i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4), (ii) both samples referred to in subparagraph (

i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed, (iii) both samples referred to in subparagraph (

i) were taken by a qualified medical practitioner or a qualified technician, (iv) both samples referred to in subparagraph (

i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and (

v) an analysis was made by an analyst of at least one of the samples; [Emphasis added] [ 12 ] The Defence contends that the statutory presumption in s. 258(1)

d) Cr. C. does not apply as the accused did not receive the CA within six months from the date the blood samples were drawn. [ 13 ] According to the Crown, it is too late for the Defence to invoke the delay.

As the CA was already produced into evidence and not contested by the Defence, the blood alcohol level of the accused at the time of driving is part of the evidence. [ 14 ] It is clear to the Court that the Crown is confusing the admissibility of the CA with the conditions required to give rise to the presumption. [ 15 ] A sample of the accused’s blood does not tell us the blood alcohol level at the time of driving as there is often a period of time that passes between the alleged offence and the moment the sample was taken. [2] [ 16 ] Therefore, in order for the Crown to prove the offence of “driving over 80” they must demonstrate beyond a reasonable doubt that the results of the analyses of the blood samples are conclusive proof of the concentration of alcohol in the accused’s blood at the time they were driving. [ 17 ] When these blood samples are taken, two documents are produced and provided to the accused: 1.

CA reveals the results of the concentration of alcohol in the blood of the accused. 2. CQT states that the sample taken complied with the Criminal Code and that a second sample was taken to permit an analysis to be made by or on behalf of the accused. [ 18 ] In addition to these two documents, a summons is provided to the accused and informs the accused, among other details, of the nature of the charges against them. [ 19 ] In order for the Crown to meet their evidentiary burden of a “driving over 80” charge, they may rely on the statutory presumption in s. 258(1)

d) Cr. C. [ 20 ] However, this statutory presumption of the blood alcohol level at the time of driving imposes several conditions in order to be available. [3] These conditions will be examined in the second issue. [ 21 ] In the reasons for Egger , Justice Sopinka clarifies the distinction between the rules that govern the availability of the statutory presumption and the admissibility of the CA and the CQT as evidence. [4] [ 22 ] This distinction has two main consequences. [ 23 ] First, the admissibility of the CA and the CQT does not depend on meeting the conditions required for the presumption. [5] As mentioned, the rules set out in s. 258(1)

d) Cr. C. govern the availability of the presumption. [ 24 ] Second, even where the CA and CQT are deemed admissible, this does not prevent the Defence from contesting the availability of the presumption in s. 258(1)

d) in their pleadings. [6] [ 25 ] The Crown relies on R. c. Larivière [7] to argue that the Defence cannot challenge the admissibility of the CA at trial as they neglected to contest its admissibility in a reasonable delay. As a result, the CA cannot be said to be inadmissible. [ 26 ] Indeed, the Superior Court in R. c. Larivière held that a party who fails to oppose the admissibility of evidence in a reasonable

delay cannot later plead that such evidence is inadmissible. [8] [ 27 ] However, the Superior Court in Larivière also emphasized that even when the CA and CQT are deemed admissible, the Crown does not automatically benefit from the statutory presumptions in section 258(1)

d) Cr. C. The Crown must still demonstrate that they have met all necessary preconditions in order for the presumption to be available. [9] [ 28 ] The Court held that the Defence may introduce at trial the argument that the preconditions of the statutory presumption concerning the CA have not been met. By deciding otherwise would transform the rebuttable presumption in s. 258(1)

c) into a conclusive one. [10] This holding by extension applies to the presumption in s. 258(1)

d) Cr. C. [ 29 ] The Crown also referred to Anderson c. R. [11] to support her position. This judgment has no relevance in this case. In Anderson , the Defence contested that the arrest had been made by an officer without any reasonable grounds to suspect that the accused had committed or was committing a s. 253 offence. The Defence submitted this argument to support a s. 24(2) Charter motion requesting to set aside the evidence of the analysis of the breathalyser test. [ 30 ] The situation in this case is quite different. The Defence is not requesting to exclude the evidence (the CA). The Defence argues that the requirements for the statutory presumption of s. 258(1)

d) Cr. C. are not met here. [ 31 ] Therefore, the state of the law presents that even when the Defence does not contest the admissibility of the CA in a reasonable delay, the Defence may still contest the preconditions required for the application of the presumption in s. 258(1)

d) Cr. C. at trial. Second issue in dispute : Does the presumption of s. 258(1)

d) Cr. C. apply? [ 32 ] Since the CA is admissible in law, the Defence contests that the statutory presumption set out in s. 258(1)

d) Cr. C. does not apply in the circumstances. [ 33 ] To benefit from the presumption, s. 258(1)

d) Cr. C. requires the Crown to prove all the preconditions listed in its subsections. In this case, only the condition listed in subsection (

i) is problematic. [12] The Supreme Court of Canada held in R. v. Egger : The statutory presumption in s. 258(1)(

d) requires that the accused know the charge against him or her and know of the DCPC’s analysis evidence and be informed of the existence of a second sample available for independent testing. [13] [ 34 ] The mechanism by which the accused may obtain the additional sample is addressed in s. 258(4) Cr. C. According to this mechanism, the accused’s

summary application must be made within six months from the day on which the samples were taken. [ 35 ] The Supreme Court held the presumption is available only if the above information is received by the accused with enough time to apply for an order pursuant to s. 258(4) Cr.

C. [14] [ 36 ] Specifically, in Egger , the Supreme Court establishes: What is required, then, for the presumption of the blood alcohol level at the time of driving to arise (subject to the satisfaction of the other conditions spelled out in s. 258(1)d)), is that the accused have notice within the three-month window that he or she is charged with an impaired driving offence, that the DCPC has had a sample of the accused’s blood analyzed and that a second sample was taken and is available to permit an analysis of it by or on behalf of the accused.

To put it more simply, the accused must have notice that a second sample is available for testing and that there is a reason (consisting in the jeopardy of criminal charges and the results of the DCPC’s blood sample analysis) to obtain it .

Service of [Certificate of Analysis] and summons do not meet this requirement because neither document refers to the existence or availability for testing of the second sample . [15] [Emphasis added] [ 37 ] The temporal window within which the accused may request the release of the second blood sample for their independent analysis and examination was amended in 1997 from three months to six months. [16] [ 38 ]

Interpretation of s. 258(1)

d) must keep in mind the accused’s right to make full answer and defence. [17] [ 39 ] Being denied the benefit of the presumption is not a be-all-end-all for the prosecution’s case.

It simply means that in order to convict the accused of an s. 253 offence, the Crown must demonstrate beyond a reasonable doubt, with ordinary evidentiary tools, that the blood alcohol level at the time the sample was taken is the same as the accused’s blood alcohol level when they were driving. [18] [ 40 ] Let us now consider how the law applies to the relevant facts of the case. [ 41 ] Notice of intention to produce the CA was given to the accused on October 4, 2015, the same day of her arrest. However, she only received a copy of the CA approximately 16 months after these events.

As a result, the impaired driving charges laid against the accused did not provide her reasonable notice to request a second blood sample and are not in conformity with s. 258(4) Cr. C. [ 42 ] In a similar case where the accused was charged four months after the blood samples were drawn, the Court of Appeal [19] relied on Egger to reaffirm that the Crown could not benefit from the presumption in s. 258(1)

d) as the charges were laid after three months (which was the statutory time limit at that point in time) from the date of the blood samples. The Court of Appeal affirmed: Le droit d’un individu de demander le second échantillon en vertu du sous-alinéa 258(1)(d)(

i) n’a de sens que s’il peut l’exercer ou y renoncer en se basant sur des renseignements pertinents, comme le dépôt d’une accusation. [20]

[ 43 ] As the presumption could not apply, and as there was no evidence introduced by other means to demonstrate the blood alcohol level while driving, the Court of Appeal acquitted the accused of the offence of driving a motor vehicle with a blood alcohol concentration that exceeded the statutory limit of 80 mg of alcohol per 100 ml of blood. [ 44 ] In this case, Ms. De Courcy-Ireland was not aware about the nature of the charges laid against her until approximately the end of 2016, or beginning of 2017. The Crown took about 16 months to decide the nature of the charges. [ 45 ] The Court agrees with Defence counsel. In this case, the presumption in s. 258(1)

d) does not apply. The CA therefore only proves the blood alcohol level of the accused at the time the samples were taken, more than one hour and thirty minutes after the car accident. [ 46 ] As Judge Sopinka affirmed in Egger : […] without the aid of the presumption, the Crown has no case [...] [21] [ 47 ] The Court considers that the Crown has not discharged their burden of proof regarding the essential elements of both offences. CONCLUSIONS FOR THESE REASONS, THE COURT : ACQUITS the accused, Alison De Courcy-Ireland, on all counts. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q.

M e Sylvie Dulude For the Crown M e Andrew Barbacki For the Accused Dates of hearing: February 4, 5 and 7, 2019 (before Justice D. Mondor); on February 20, 2020, the continuation of proceeding before another judge was ordered (s. 669.2 Cr. C.); October 7, 2020 (before Justice C. Tremblay); the long deliberation of Justice Tremblay is justified by a sick leave.