R. v. Morelli, 2020 BCPC 33

Citation: R. v. Morelli 2020 BCPC 33 Date: 20200121 File No: 89476-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEVIN FRANCIS MORELLI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. HEINRICHS Counsel for the Crown: P. O'Neil Counsel for the Defendant: C. Armour Place of Hearing: Kelowna , B.C. Dates of Hearing: November 8, December 6, 2019 Date of Judgment: January 21, 2020 [ 1 ] Devin Francis Morelli is charged with having the care or control of a motor vehicle when he had a blood alcohol concentration greater than 80 milligrams of alcohol in 100 millilitres of blood.

[ 2 ] The charge arises from the following events: [ 3 ] At approximately 1:00 a.m. April 14, 2018, Mr. Morelli was stopped by police in Kelowna, BC and provided a road side breath sample into an ASD resulting in a “fail”. The police transported Mr. Morelli to the detachment to provide a two valid breath samples into an approved instrument. [ 4 ] Constable Neid observed Mr. Morelli to ensure that he did not burp, belch, vomit or consume anything during the observation periods prior to providing a breath sample.

Constable Carson, the qualified breath technician, operated the approved instrument, collected the breath samples, and recorded the results. [ 5 ] Both officers testified that they did not see Mr. Morelli burp, belch, vomit or consume anything during the minimum 15 minute observation periods immediately preceding the breath samples provided by Mr. Morelli. [ 6 ] The Certificate of a Qualified Technician shows that the first breath sample taken at 2:51 hours resulted in a reading of 150 milligrams of alcohol in 100 millilitres of blood.

The second breath sample taken at 3:32 hours resulted in a reading of 140 milligrams of alcohol in 100 millilitres of blood. Both exceed the limit of 80 milligrams of alcohol in 100 millilitres of blood. [ 7 ] In addition to the breath samples recorded in the Certificate, Mr. Morelli provided another breath sample between those two. In assessing that sample, the approved instrument showed a reading of “Mouth Alcohol”. [ 8 ] The Crown has the obligation to prove the charge beyond a reasonable doubt. How they do this depends on:

a) whether the intervening test reading “Mouth Alcohol” raises a reasonable doubt that the approved instrument was functioning, thus undermining the reliability of the two recorded test results; and

b) if no reasonable doubt is raised, whether the presumption of identity that existed in the Criminal Code before the amendments of Bill C-46 came into force in December 2018, is still applicable, or

c) if the presumption does not apply, has Crown proven, beyond a reasonable doubt, that Mr. Morelli’s Blood Alcohol Concentration was over the legal limit at the time of driving by another method. [ 9 ] Crown submits the following: 1. The presumption of identity that existed under s. 258(1) (

c) of the Criminal Code still applies to trials conducted after December 18, 2018, when the offence date is before December 18, 2018; 2. Crown has met the requirements set out in section 258(1) (

c) to rely on the presumption of identity; 3. Crown has also met the requirements set out in the new

section 320.31(1) – the new presumption of accuracy; 4. There is no evidence to show that the approved instrument, the Intox EC/IR II, was malfunctioning or operated improperly; and finally 5. In the alternative, if I do not accept Crown’s submission that the presumption of identity still applies, or if I find that the approved instrument was malfunctioning or operated improperly, I should accept the expert opinion of Karen Chan who determined through extrapolation that Mr.

Morelli’s Blood Alcohol Concentration was over 80 at the time he had care and control of the vehicle. [ 10 ] Defence submits the following: 1. There is no issue with the operation of the approved instrument on April 14, 2018, but there is an issue with the functioning of the approved instrument; 2. The burden is not on the Defendant to prove that the approved instrument malfunctioned; the Defendant only has to raise a reasonable doubt that the approved instrument malfunctioned; this cannot be mere hypothesis, conjecture or speculation; 3.

That the Defendant has raised a reasonable doubt given the officers’ testimony that nothing occurred to explain mouth alcohol, yet the approved instrument determined there was mouth alcohol. The officers did not observe the Defendant belch, burp, hiccup, vomit, or consume anything. They did not hear him clear his throat or cough. Given the officers’ testimony, the conclusion must be that the approved instrument was malfunctioning or at minimum it raises a reasonable doubt; 4. To find that Mr.

Morelli introduced mouth alcohol through some action not observed by the officers would require the court to conjecture or speculate; 5. If I have a reasonable doubt as to the functioning of the approved instrument, I must find the two recorded readings invalid, and therefore whether the presumption of identity that existed in the Criminal Code prior to December 18, 2018 applies or not is a moot issue; 6. In the alternative, if I have no reasonable doubt that the approved instrument malfunctioned, the Defendant submits that the presumption of identity no longer applies in law; 7.

Finally, the opinion of Karen Chan is flawed because it is based on two assumptions, not supported in evidence: a. that the instrument was working correctly in giving the first reading. If he had mouth alcohol at the time of the second test, he must have had mouth alcohol when the first test was taken; and

b. that results may be inflated if Mr. Morelli had consumed alcohol within 30 minutes of driving. He had not consumed alcohol since his arrest, so the mouth alcohol must be a result of drinking within 30 minutes of driving. ANALYSIS The malfunctioning of the Approved Instrument [ 11 ] I will start my analysis of the evidence on this point. If I find, or have a reasonable doubt, that the approved instrument was malfunctioning, I cannot rely on the readings that it gave on April 14, 2018, and cannot rely on any presumptions. That would be the end of my decision and Mr.

Morelli would be acquitted. [ 12 ] However, if I find or have no reasonable doubt that the approved instrument was functioning, the readings will stand and I will then have to consider whether any presumptions apply to them. [ 13 ] Constable Carson testified that he conducted the required steps to get the approved instrument ready to receive the breath samples. This includes an internal test to ensure there is no residual alcohol in the instrument that might skew the results, as well as other steps to ready the approved instrument. The Constable went on to enter basic information about Mr.

Morelli into the approved instrument and the approved instrument signalled when it was ready to receive a sample. [ 14 ] All of the appropriate steps were taken for Mr. Morelli to provide his first breath sample, then his second sample, and ultimately the third sample. The officers followed all procedures with respect to waiting the minimum 15 minutes between samples. This time period allows any possible mouth alcohol to clear through Mr. Morelli’s system.

If during a 15 minute observation period, an officer observes the subject burp, belch, vomit, regurgitate or do anything that might bring alcohol into the subject’s mouth, the 15 minute observation period starts again to allow any possible mouth alcohol to clear. The officers did not see Mr.

Morelli burp, belch, vomit, regurgitate or do anything that might have brought alcohol into his mouth, prior to the second breath sample. [ 15 ] The second breath sample resulted in the approved instrument giving a reading ‘mouth alcohol.’ [ 16 ] In my view, the approved instrument operated exactly according to its design, in detecting residual mouth alcohol.

It is a built in fail-safe, so that if perchance the observer did not see anything during the observation period, and a person does have mouth alcohol, the approved instrument will not result in an inflated reading. [ 17 ] I am not required to determine how this reading came about. [ 18 ] After the reading, the officers then waited a further required 15 minutes for the mouth alcohol to clear, and Mr. Morelli provided a third breath sample. The approved instrument performed its preliminary tests and provided a reading. [ 19 ] I have not had to speculate as to whether or not the machine was functioning properly.

Defence has not raised a reasonable doubt as to the function of the approved instrument. I find that the approved instrument was functioning properly. [ 20 ] The Defence concedes that there was nothing inappropriate in the operation of the approved instrument. No issue was raised suggesting that the officers did not follow appropriate procedure. [ 21 ] Given my finding that there is no reasonable doubt that the approved instrument was malfunctioning, I accept the readings provided from the first and third breath samples.

The Presumptions [ 22 ] Before December 2018, valid breath sample test results set out in a Certificate of a Qualified Technician were conclusive proof that:

a) they are an accurate measure of the accused’s Blood Alcohol Concentration at the time of testing – called the presumption of accuracy; and

b) the lower of the two breath sample readings at the time of testing is deemed to be the accused’s Blood Alcohol Concentration at the time of care and control of the vehicle – called the presumption of identity. [ 23 ] The presumption of identity made it easier for Crown to prove the driver was ‘over 80’ at the time of driving. Previously, Crown had to bring in an expert witness to extrapolate the Blood Alcohol Concentration at the time of driving, and Defence had available various defences to challenge the expert evidence.

The presumptions of accuracy and identity simplified and streamlined prosecution, in the interests of preventing impaired driving and protecting society. [ 24 ] On December 18, 2018, Bill C-46 came into force, amending the Criminal Code .

It is now an offence to have driven or have had the care or control of a motor vehicle within 2 hours of being ‘over 80.’ The Crown is no longer required to establish the Blood Alcohol Concentration at the time of driving or care and control of a vehicle, now called a conveyance. [ 25 ] What happens to cases where the offence occurred before December 18, 2018, but the trial requiring proof of the offence does not occur until after December 18, 2018?

This is one of those transitional cases, caught between the old law and the new. [ 26 ] With respect to the presumption of accuracy, Bill C-46 did two things: 1) the Criminal Code now has a new presumption of accuracy, specifying the necessary requirements for breath samples to be deemed accurate; and 2) the Criminal Code has a transitional provision at section 32(2) : “

Section 320.31(1) applies to the trial of an accused that starts on or after the day when Bill C-46 takes effect, if the sample or samples were taken before that day.” [ 27 ] The law about the presumption of accuracy is clear.

[28] There are no new terms for the presumption of identity nor for the transitional period. Parliament did not expressly include anew procedure in Bill C-46 to prove ‘over 80’ at the time of driving because the new law only requires Crown to prove ‘over 80’ within2 hours of operating a conveyance. With the new law, Crown does not have to go back to the exact time of driving. [29] Also, Parliament did not expressly include a term to address the period of transition.

They repealed the old process, but did notreplace it or allow for any cross-over time for the transitional cases to complete. [30] The question now is this: do I apply the presumption of identity in Mr. Morelli’s case? The lowest of the two valid readings is140/100 and deemed to be accurate. If I apply the presumption of identity, Mr. Morrelli was ‘over 80’ at the time of driving the vehicle. [31] If I do not apply the presumption of identity, Crown must prove Mr. Morrelli’s Blood Alcohol Concentration at the time ofdriving another way. For that purpose, they called an expert to extrapolate that evidence.

What was Parliament’s intention when they repealed the sections that included the Presumption of Identity? [32] Defence submits that the new law cancels both presumptions as of December 18, 2018 and neither can be applied goingforward. Parliament would not have provided a transition

section for the presumption of accuracy and not for the presumption of identityunless it was on purpose. And if it was on purpose, the intent of Parliament was to specifically NOT provide a transition period for thepresumption of identity. The only conclusion, argues Defence, is that the presumption of identity was no longer in effect after December18, 2018. Defence would then move on in their argument to address the opinion evidence of Ms. Chan. [33] Crown submits that to determine the intent of Parliament, I must look at: 1) legal principles of

interpretation; 2) the objectives of the new law; and 3) the unintended impact, or context, if the presumption of identity is no longer available for the transitional cases. [34] Crown submits that I should also consider decisions from other provinces that have largely held that the presumption of identitycontinues to apply to transitional cases. Defence responds saying that the cases go both ways. Both agree that to date, they cannot find acase from British Columbia that determines this matter in this province. Principles of

Interpretation [35]

Section 43 of the federal

Interpretation Act sets out what happens when legislation is repealed. Specifically,

section 43(

d) statesthat the repeal does not affect an offence committed against the former enactment. When Bill C-46 came into force on December 18,2018, it repealed section 253(1)(b) – the

section under which Mr. Morelli was charged. However, because of the principles ofinterpretation, that

section is still in effect until the conclusion of this matter. Crown still has to prove beyond a reasonable doubt that Mr.Morelli was ‘over 80’ at the time of driving. [36]

Section 44 addresses what happens when legislation is both repealed and replaced. Paraphrasing,

section 44(

c) requires us to usethe new process, as much as possible to be consistent with the new law.

Section 44(

d) continues that if a new procedure is provided, wehave to follow it “as far as it can be adapted.” This means that the previous procedure is repealed retroactively and no longer exists. [37] Based on s. 44(

c) and (

d) of the

Interpretation Act, we are required to apply the new procedural provisions. [38] However, the Supreme Court of Canada held in both R. v. Ali, (SCC), [1980] 1 SCR 221, and R. v. Dingley,2012 SCC 58, that the presumption that procedural law is cancelled retroactively can be rebutted and “will yield where the contraryintent of Parliament has been evidenced.” (See Dingley, para 10; and Ali at page 235.) [39] In this situation, there is evidence that Parliament had a contrary intent.

That is, Parliament did not intend that the presumptionof identity would be repealed for the ‘over 80’ offences alleged to have occurred before December 18, 2018. This evidence is found inthe objectives of the new law and the context or unintended impact if the presumption of identity no longer applies. The objectives [40] I have considered the steps Parliament has taken over the years to make it less onerous for Crown to prove impaired driving.Parliament is not moving in a direction whereby it becomes more onerous for Crown to prove impaired driving.

This is not in theinterests of society, where impaired driving continues to be a danger and risk of significant harm to victims of accidents caused byimpaired driving. [41] This sentiment is confirmed in the

preamble of Bill C-46, some of which I set out below: • whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year; • whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; • whereas it is important to deter persons from driving while impaired by alcohol or drugs; • whereas it is important to simplify the law relating to the proof of blood alcohol concentration; • whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediatelybefore driving;

• whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood. [ 42 ] Parliament clearly intends to create law that will deter impaired driving, and to simplify the proof of one’s Blood Alcohol Concentration. I find that eliminating the ability for Crown to rely on a presumption of identity to prove Blood Alcohol Concentration at time of driving, under the old law, is not consistent with these objectives.

The unintended result or context [ 43 ] Ali was decided at a time when Parliament changed the Criminal Code to require two breath samples instead of one, but did not provide direction on the procedure for proving ‘over 80’ for the transitional cases. Pratte, J, writing for the majority of the Supreme Court of Canada, held that the

Interpretation Act is a guide to help determine Parliament’s intention. The court also stated that there would be no need for

section 35 (

e) of the

Interpretation Act (which is now our

section 43(e)) if Parliament always meant to cancel procedural matters retroactively. [ 44 ]

Section 43(

e) says, and I am paraphrasing, that the repeal does not affect any legal proceeding under the previous enactment … and the proceeding may continue as if the enactment had not been repealed. [ 45 ] Because it would be impossible for police to get a second breath sample retroactively, the unintended result or impact if the new law repealed the old procedure would be to frustrate all of the transitional cases. They would not be able to meet the new requirements.

Due to the importance of preventing impaired driving, the Supreme Court of Canada found that that could not have been the intent of Parliament. [ 46 ] As a result, the Court held that the single breath sample, or previous procedure, was sufficient for Crown to meet the burden of proof, even though at the time of trial the new procedure required two breath samples. [ 47 ] With respect to Mr.

Morelli, Crown submits that because there is no new procedure for determining the Blood Alcohol Concentration at time of driving in the Criminal Code , Parliament intended that we would continue to apply the former procedure; that is, the presumption of identity. [ 48 ] If I find that the former procedure of applying the presumption of identity does not apply, the unintended impact is that the Crown will have to provide expert evidence on each case as to the person’s extrapolated Blood Alcohol Concentration based on a breath sample provided into an approved instrument.

This makes it more costly and time-consuming for the Crown to prove their case. I find that this is not what Parliament intended by not including a transition section. Other jurisdictions [ 49 ] Crown has provided a number of cases from other jurisdictions that have considered this same question. In each of R. v. McManus , 2019 ABQB 829 , R. v. Porchetta , 2019 ONCJ 244 , R. v. Unger , 2019 MBPC 66 , and R. v. Mehta , 2019 QCCM 167 , the courts have held that the presumption of identity will still apply for the transitional cases. [ 50 ] An early case R. v.

Shaikh , 2019 ONCJ 157 held that the presumption of identity was no longer available to transitional cases. This case was applied in R. v. Jagernauth , 2019 ONCJ 231 and R. v. Melhado , [2019] O.J. No. 1993 . However, the judge in Jagernauth reversed himself in R. v. Bhandal , 2019 ONCJ 337 and the judge in Melhado reversed himself in R. v. Etcheverria (unreported, Docket 17-3456, April 25, 2019). [ 51 ] In the McManus judgment dated October 28, 2019, Henderson J. reviews the law regarding the presumption of identity at pages 9-16, starting with a look at the general principles of statutory

interpretation. The court must look at the wording, but also the purpose and all relevant context. [ 52 ] The court holds that the presumption of identity is procedural in nature (para 73), and is presumed to be repealed retroactively unless there is contrary evidence. There is no express direction from Parliament on this point. Given that the 2018 Code Amendments do not express a contrary intention, s. 43 of the

Interpretation Act allows the previous operation of the “presumption of identity” (para 91). Henderson J. considered the objectives of Bill C-46, as well as comments from the Minister of Justice, the Honourable Jody Wilson- Raybold, to the House of Commons: I would now like to discuss some of the proposals in Bill C-46 which would strengthen the law, while also creating much needed court efficiencies. Impaired driving is one of the most litigated offences in the Criminal Code and takes up a disproportionate amount of time in courts.

This is all the more important since the Supreme Court of Canada’s decision in R. v. Jordan last July. (Hansard, 42nd Parliament, 1st Sess, May 19, 2017, p. 1010.) [ 53 ] These objectives are repeated in the legislative background documents. [ 54 ] In conclusion, the Alberta Court of Queen’s Bench upheld the trial judge’s decision to permit the Crown to rely on the presumption of identity. [ 55 ] In Unger , a decision made October 29, 2019 from the Manitoba Provincial Court, Harvie J. looks at cases from the other provinces.

Although Shaikh and Jagernauth support the repeal of the presumption of identity, the prevailing judicial view has been to adopt the conclusions in R. v. Porchetta , 2019 ONCJ 244 and R. v. Sivalingam , 2019 ONCJ 239 (paras. 12 and 13 ). The Court takes into consideration the stated goals of the new legislation, the findings in most of the case law to date, and s. 43 of the

Interpretation Act which allows for the application of past procedural law in some cases, even though repealed. [ 56 ] R. v. Porchetta provides a succinct discussion of the principles of

interpretation, adding comments about ss. 12 and 13 of the

Interpretation Act , to determine Parliamentary intent. Enactments are intended to be remedial, and shall be given fair, large and liberal

interpretation to attain its objectives. The

preamble of an enactment shall be read as part of the enactment to assist in explaining its purport and object (para 28). [ 57 ] In each case that holds that Parliament did not intend to leave the transition cases without the ability to use or apply the presumption of identity, the court has reviewed principles of

interpretation, the objectives set out in the new law, and the context to determine that intent. [ 58 ] Although none of these cases are binding on me, I have reached the conclusion that Parliament did not intend for Bill C-46 to repeal the presumption of identity set out in section 258(1) (

c) of the Criminal Code and therefore Crown may still rely on that presumption to prove ‘over 80’ at the time of driving. Applying the Presumptions [ 59 ] Crown has met the obligation of meeting the requirements of both presumptions. [ 60 ] Both the evidence of Constable Carson and his Certificate of Qualified Technician confirm that Mr. Morelli’s breath was received into an approved instrument, operated by a qualified technician. Before each test a blank test and system calibration checks occurred. There was an interval of at least 15 minutes between the samples.

The results did not differ by more than 20 mg in 100 mL of blood. The Defendant took no objection with the procedure with respect to the presumption of accuracy. I am satisfied that the approved instrument was not malfunctioning. [ 61 ] Applying the presumption of identity, Mr. Morelli’s Blood Alcohol Concentration at the time of driving the vehicle was the lowest of the two readings, which was 140 mg of alcohol in 100 ml of blood. [ 62 ] I do not need to assess the evidence of Karen Chan since I have applied the presumption of identity set out in s. 258(1) (c). [ 63 ] There was no evidence that Mr.

Morelli was drinking alcohol just prior to or within 30 minutes of being stopped, and to find that there was would be pure speculation. Mr. Morelli did not testify. In the case R. v. St-Onge Lamoureux , 2012 SCC 57 the only argument that rebuts the presumption of identity is to show that the approved instrument was malfunctioning or operated improperly. Defence has not raised a reasonable doubt in this regard. CONCLUSION: [ 64 ] The approved instrument was operated and functioned properly. Crown has met the burden of showing that the results of the approved instrument were accurate.

Parliament did not intend to leave a gap for transitional cases, in not addressing the presumption of identity. Applying the presumption of identity means that the lowest of the two test results, 140/100, was Mr. Morelli’s Blood Alcohol Concentration at the time of driving. [ 65 ] Mr. Morelli is therefore guilty of the charge of driving while his Blood Alcohol Concentration was over 80 milligrams of alcohol in 100 millilitres of blood. __________________________ The Honourable C. Heinrichs Provincial Court Judge