R v Albus, 2015 SKCA 121

Court of Appeal for Saskatchewan Docket: CACR2487 Citation: R v Albus , 2015 SKCA 121 Date: 2015-11-18 Between: Corey Albus Appellant And Her Majesty the Queen Respondent Before: Jackson, Caldwell and Herauf JJ.A. Disposition: Leave to Appeal Granted and Appeal Allowed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: 2014 SKQB 219 , J.C. of Regina Heard: June 16, 2015 Counsel: Barry Nychuk for the Appellant Andrew Davis for the Respondent Herauf J.A. I. Introduction [ 1 ] Corey Albus was convicted of driving with a blood alcohol level over 0.80 mg, contrary to s. 253(1) (

b) of the Criminal Code . He appealed. Two of his three grounds of appeal to the

summary conviction appeal court related to somewhat standard issues in charges of this nature, namely, whether the breath samples had been taken within two hours and whether the breath samples had been taken as soon as practicable. The

summary conviction appeal judge dismissed the appeal as it relates to these grounds of appeal. [ 2 ] Mr. Albus had added a third ground of appeal before the

summary conviction appeal judge that was not an issue before the trial judge. Simply put, this ground related to the law changing with respect to evidence to the contrary after his conviction but before his appeal was determined. The change resulted from the Supreme Court of Canada’s decision in R v St-Onge Lamoureux , 2012 SCC 57 , [2012] 3 SCR 187 [ St-Onge Lamoureux ] which changed the requirements for rebutting the presumption with evidence to the contrary. The decision in St-Onge Lamoureux was released on November 2, 2012. The trial decision in Albus was handed down on April 25, 2012, and Mr. Albus was sentenced on December 3, 2012. This ground of appeal was also dismissed by the

summary conviction appeal judge (see R v Albus , 2014 SKQB 219 , 450 Sask R 136). [ 3 ] This third ground of appeal raises an important issue which has not previously been extensively dealt with by this Court. In my view, for the reasons listed below, the appeal must be allowed and a new trial ordered on this ground of appeal. Since there must be a new trial, there is no need to address Mr. Albus’ other grounds of appeal. II. Background [ 4 ] The pertinent facts are relatively simple. Since they are not in dispute I will quote them as outlined in paras. 15​–18 of the respondent’s factum: 15.

Once in Regina, the appellant spoke with counsel and was placed under observation. Police obtained a breath sample between 3:30 and 3:32. This sample returned a reading of 180 but also gave an interferent message. An interferent is a non-alcohol substance which a machine may detect. Cst. Bidulka, the breath technician, testified that when there is an interferent message, it prompts him to enquire as to the subject’s health to make sure he has not ingested any toxins. The machine in turn goes through a series of tests to measure the quantity of the interferent and to ready itself for a second test. 16.

In this case, the machine determined that there was in fact no discernible interferent in the sample. Once it had gone through its internal checks, it prompted the officer to begin the next sample. For his part, Cst. Bidulka spoke to the appellant about what he had consumed. The appellant was very forthcoming and based on their conversation, Cst. Bidulka was satisfied that the appellant had ingested nothing which would either pose a health risk or would interfere with the breath testing procedure. 17. He proceeded to take a second sample which he obtained by 3:36 a.m.

He then observed a 20 minute observation period and attempted to take a second valid sample (third sample overall) after the observation period elapsed. This sample gave an ambient fail message which means that ambient conditions are interfering with the machine’s ability to take a reading. The officer purged the machine, was prompted to take the next sample, and took a final sample at 4:06. Both useable samples as well as the first sample returned readings of 180 mg percent. 18. At this point the officers noticed swelling to the side of the appellant’s face.

The appellant was transported to hospital where he was seen by medical staff. The appellant did not testify. …

(References removed) III. the

summary conviction appeal decision [5] As already noted, Mr. Albus argued a third ground of appeal before the

summary conviction appeal judge that was not dealtwith at the trial court. He contended that the decision of the Supreme Court in St-Onge Lamoureux (which was released betweenconviction and

summary appeal) changed the law. In brief, Mr. Albus contended that the limited defence that may be advanced unders. 258(1)(c)(iv) of the Criminal Code was unavailable to him at trial so he had not called much evidence about it. The

summaryconviction appeal judge noted that there was no indication from Mr. Albus what evidence he might call to show that the Intoxilyzermalfunctioned or was operated improperly. While Mr. Albus had pointed to a change in the law, there was no factual foundation whichthe Court could consider to determine whether the change in the law could have affected an issue at trial. The

summary convictionappeal judge held that it was insufficient to assert that had the law been different at the time of the trial, the trial strategy might also havebeen different. [6] As already mentioned, the

summary conviction appeal judge held against Mr. Albus on all three grounds of appeal anddismissed the appeal. IV. Issue on appeal [7] Did the

summary conviction appeal judge fail to exercise his discretion judicially by declining to order a new trial on theground that the law with respect to “evidence to the contrary” had changed after the trial judge rendered her decision? V. Analysis [8] This ground of appeal was presented for the first time before the

summary conviction appeal judge. The

summaryconviction appeal judge held that Mr. Albus was “not entitled to have an acquittal entered based on a subsequent change in the law.”Even though the

summary conviction appeal judge references an acquittal, I agree with Mr. Albus that his request was for a new trialbased upon the change in the law as a result of St-Onge Lamoureux. [9] By way of brief background, in St-Onge Lamoureux, the Supreme Court struck down two of the three legislated evidentiaryrequirements that an accused person had to meet before he could challenge the presumption of accuracy of breath sample results.

Prior toSt-Onge Lamoureux, an accused person was required to show that the machine malfunctioned or was operated improperly, that this errorresulted in the above 0.80 mg reading and that the accused’s alcohol consumption would actually have placed him below that level. Thefinal two requirements were found to reverse the burden of proof and to be unconstitutional. Following St-Onge Lamoureux, an accusedperson may simply lead evidence tending to show that the machine was malfunctioning or was operated improperly.

Then if thatevidence raises a reasonable doubt as to the accuracy of the readings, the presumption of accuracy will be rebutted. More will be saidabout this decision in subsequent paragraphs of this judgment. [10] The Crown acknowledges that the decision in St-Onge Lamoureux has the potential to justify raising new issues on appeal,but there must still be a factual foundation for these issues to be determined. [11] Mr. Albus contends that there was some evidence involving interferent and ambient fail messages, as well as evidence aboutMr.

Albus’ medical condition that should justify a new trial based upon the decision in St-Onge Lamoureux. [12] Before delving into the arguments made by Mr. Albus, it is first necessary to explore the jurisprudence relating to changes tothe law resulting from a decision of the Supreme Court of Canada. A. Issue Not Raised at Trial [13] There is a general prohibition against new arguments or issues being raised on appeal.

This prohibition reflects two concernsheld by appellate courts: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial, andsecond, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. Further, therule supports the overarching societal interest in the finality of litigation in criminal matters. [14] Notwithstanding this concern, new issues arising between the trial and appeal fall into a different category.

While a rareoccurrence, subject to certain requirements, new issues may be raised if the law had shifted substantially in the time between the trialdecision and before the appeal is heard.

I will enunciate these requirements by reviewing the few cases addressing this issue. [15] In R v Wigman, (SCC), [1987] 1 SCR 246 [Wigman], the accused was convicted of attempted murder at trial.The trial judge instructed the jury according to R v Lajoie, (SCC), [1974] SCR 399 [Lajoie], which stated that therequisite mens rea was intention to kill or intention to cause bodily harm knowing that death may result and being reckless whether deathensues or not. However, Lajoie was overruled by R v Ancio, (SCC), [1984] 1 SCR 225, which held that the mens rea forattempted murder was specific intent to kill.

In Wigman, the Supreme Court held that the appellant was entitled to have his liabilitydetermined according to the new narrower

interpretation of the mens rea requirement for attempted murder. [16] In R v Brown (1992), (AB CA), 73 CCC (3d) 481 (Alta CA) [Brown Alta], the appellant sought to raise aCharter argument in light of R v Hebert, (SCC), [1990] 2 SCR 151 [Hebert] and R v Broyles, (SCC),[1991] 3 SCR 595. The appellant argued that his s. 7 rights had been violated by the undercover officers and that conversations recorded

in custody should be excluded from evidence. Hebert affirmed that the principles of fundamental justice in s. 7 include a right to remainsilent and, more importantly, the statements actively elicited from an accused while still in custody by agents of the state after theaccused asserts his or her right to remain silent, can contravene s. 7 of the Charter.

Not only had there not been a recognized right tosilence prior to Hebert, but prior Supreme Court jurisprudence had held that an undercover officer was not a person in authority (seeRothman v The Queen, (SCC), [1981] 1 SCR 640). [17] In his dissent in Brown Alta, Harradence J.A. canvassed the existing case law with respect to raising new issues on appeal.After examining the case law, Harradence J.A. concluded at p. 488 that: … Where the court has a sufficient factual foundation to appraise the issue without prejudice to the parties and particularly whererefusing to do so will result in unfairness, then in my view it is proper for the appeal court to hear and determine the question put beforeit. (Emphasis in original) He went on to find that it would be both “unfounded and unjust” not to permit the appellant to raise the issue because the “accepted law… made a dramatic shift between the trial and appeal dates” (see Brown Alta at p. 491).

Similarly, citing Wigman, Harradence J.A. notedthat “where the law recognizes a defence at the time of appeal which it did not recognize at the time of trial, an accused is to have thebenefit of the later law” (see Brown Alta at p. 491). [18] The dissenting opinion of Harradence J.A. was affirmed by the Supreme Court in R v Brown, (SCC), [1993]2 SCR 918 [Brown SCC].

The Supreme Court ordered a new trial and noted “in the new trial, the Crown and the appellant shall have theright to lead evidence going to the issue of whether or not the appellant knew that his interrogations were being conducted by policeofficers such that he waived his right to silence.” [19] Since Brown SCC, three appellate decisions have considered this issue in depth: R v R.(R.) (1994), (ONCA), 91 CCC (3d) 193 (Ont CA) [Rollocks]; R v C.(C.) (1999), (ON CA), 131 CCC (3d) 552 (Ont CA) [C.C.]; and Rv Weir, 1999 ABCA 275, 140 CCC (3d) 441 [Weir]. [20] In Rollocks, the Court had the opportunity to look at what is considered a “dramatic shift” in the law.

The appellant, who isblack, was convicted of sexual assault. He sought a new trial on the footing that he wanted to challenge potential jurors for cause on thebasis of race induced partiality. The appellant argued that between conviction and appeal the law had shifted based on the Ontario Courtof Appeal decision in R v Parks (1993), (ON CA), 84 CCC (3d) 353 [Parks], which had created a new basis for achallenge for cause. At p. 203 of Rollocks, the Court commented on the “dramatic shift” issue: … Our law, particularly its common law component, is in constant metamorphosis.

One must distinguish between incrementaldevelopments in the law which occur on an ongoing basis, usually at the initiative of counsel, as legal principles are applied to particularfact situations, and fundamental restatements of the law which overrule established authority and send the law in a new direction. Onlythe latter gives cause to make an exception to the general principle that new issues cannot be raised on appeal. Thus, according to the Ontario Court of Appeal, a “dramatic shift” in the law is a prerequisite to raising a new issue in thesecircumstances.

The Court dismissed the appeal because it could not find that its decision in Parks had “overruled any establishedauthority or created a new basis for a challenge for cause” (see Rollocks at p. 204). [21] In C.C. the Ontario Court of Appeal had another opportunity to comment on a “dramatic shift” in the law. In this case theappellant sought to raise the defence of extreme intoxication for the first time on appeal.

The appellant was convicted of sexual assaultprior to the release of the decision of the Supreme Court of Canada in R v Daviault, (SCC), [1994] 3 SCR 63 [Daviault].In Daviault, the Supreme Court held that the common law rule that voluntary intoxication was not a defence to sexual assault violated ss.7 and 11(

d) of the Charter. The Court of Appeal dismissed the application to consider the new ground of appeal. The Court held that theappellant could have raised the defence of extreme intoxication at trial and that the Supreme Court decision in Daviault was theconclusion of a normal evolution of the common law. [22] In essence, the Court in C.C. found that a change in law cannot represent a dramatic shift if it had been expected. Indeed, theCourt points to “clear signals from the Supreme Court of Canada and from this court” (see C.C. at p. 555) to make its point.

Further, ifchange was already occurring at the lower levels of court and an appellate court follows suit, then the change was not fundamental ordramatic. [23] In Weir, the appellant made an application to amend his Notice of Appeal based on a recent decision from the BritishColumbia Court of Appeal in R v Sharpe, 1999 BCCA 416, 136 CCC (3d) 97 that held s. 163.1(4) (possession of child pornography) ofthe Criminal Code to be unconstitutional. The appellant had been convicted of the same offence in Alberta and wished to include a newground of appeal questioning the constitutionality of s. 163.1(4).

Relying on Brown SCC and Rollocks, the Crown argued that in order toraise a new issue in response to a change in the law, the appellant must satisfy the court that, 1. there had been fundamental (as opposed to an incremental) change in the law, and 2. the evidentiary foundation for the prayed for adjudicated relief must be before the court.

The Court was quick to identify the “practical anomaly” that exists within these criteria, namely, that “an inability to anticipate a changein the law [is not] fatal but, on the Crown’s theory, the failure to adduce an adequate evidentiary record at trial in support of anunanticipated change in the law would be” (see Weir at para. 11). In other words, an appellant would be obligated to present evidence insupport of an argument that flies in the face of existing law.

This test would eliminate a commonly used appellate court remedy; that is,the ordering of a new trial to allow further evidence to be adduced to facilitate new findings of fact.

[24] The Alberta Court of Appeal held that a court should consider a new issue “if a sufficient evidentiary foundation can beestablished” (see Weir at para. 12; emphasis added). If there is a fundamental change in the law, but there is a lack of evidentiaryfoundation, the court can permit counsel, on application, to adduce fresh evidence; direct that commission evidence be gathered; or directthe trial judge to consider the issue (a new trial in the present context) (see Weir at para. 15). [25] A final decision relevant to this discussion is R v Stevenson, 2005 SKCA 44, 262 Sask R 278 [Stevenson].

Stevenson involvedan application to extend the time to appeal a designation that he is a dangerous offender and to appeal the decision by the trial judge thathe be sentenced to an indeterminate sentence. This designation was made on May 28, 1998. Stevenson had been denied leave to appealthis designation both to this Court (leave to appeal denied on January 9, 1999) and the Supreme Court of Canada (leave to appeal deniedon September 21, 2000).

The gist of his application was that the Supreme Court had completely recast the law in R v Johnson, 2003 SCC46 , [2003] 2 SCR 357 and, consequently, he should be allowed to have his designation as a dangerous offender revisited as aresult of the changes in the law. [26] This Court declined to grant the relief requested noting at para. 8 that Stevenson “is not a person ‘in the judicial system’ ascontemplated by R v Wigman, and should not be brought back into the system artificially.” Stevenson had exhausted his appeals and nolonger had an extant appeal before the courts. [27] From a review of the decisions previously listed, the following principles can be extracted: 1. the appellant must be “in the system” in the sense that the appeal must still be extant, 2. the appellant must demonstrate that a fundamental restatement of the law, which overrules established authority and sendsthe law in a new direction, has occurred, 3. an incremental change in the law is not sufficient, 4. a lack of an evidentiary record is not necessarily fatal if the law has dramatically shifted between the date of conviction andthe appeal.

B. Can the s. 258(1)(

c) issue be raised on appeal? 1. Was the s. 258(1)(

c) issue raised at trial? [28] Upon reading the trial judge’s decision, it is clear that this issue was not directly raised at trial. Indeed, the trial judge statesthat “[i]n their submissions … counsel also focused on the two main issues that they wished the Court to consider. Counsel did not raiseor argue any other points” (p. T234). As already noted, the two issues concerned the two-hour limit and “as soon as practicable” points.Further, I could not find any discussion of malfunctioning machines or improper operation in defence counsel’s submissions.

Therefore,since the issue was not directly raised at trial, St-Onge Lamoureux must be seen to have fundamentally restated the law in order for s.258(1)(

c) to be raised on appeal. 2. Legislative History (Section 258 of Criminal Code) a. Presumptions [29] The 2008 amendments did not change the nature of the presumptions contained within s. 258 of the Criminal Code (see St-Onge Lamoureux at para. 15). According to the presumption of accuracy, the certificate of the technician responsible for the analyses ispresumed to provide an accurate determination of the person’s blood alcohol level at the time the breath samples were taken.

Accordingto the presumption of identity for breath samples, a person’s blood alcohol level as shown by the test is presumed to be the same as his orher blood alcohol level at the time of the alleged offence. In 2008, both the presumption of accuracy and of identity were incorporatedinto s. 258(1)(c). b. Pre-2008 Amendments [30] Until 2008, the presumptions could be displaced simply by adducing “evidence to the contrary”: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or in any proceedings undersubsection 255(2) or (3), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol inthe blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are thesame, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrationsdetermined by the analyses; …

(d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (

c) or(

d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eightymilligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending toshow that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed didnot exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of theaccused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundredmillilitres of blood; (Emphasis added) [31] In R v Carter (1985), (ON CA), 19 CCC (3d) 174 (Ont CA) [Carter], the Court considered the meaning of“evidence to the contrary”.

It held that the testimony of the accused concerning his or her alcohol consumption, combined with anexplanation by a toxicologist of the implications of that consumption, could be tendered as “evidence to the contrary” in order to raise adoubt about the results of the breathalyzer test. This test became known as the “Carter defence” and proved to be an effective defenceagainst .08 charges. The Carter defence was widely used across Canada.

There are hundreds of reported decisions where the Carterdefence was used successfully to obtain an acquittal at trial. [32] In 2008, Parliament passed the Tackling Violent Crime Act, SC 2008, c 6, to amend the

section in order to establish theprimacy of the test results (see St-Onge Lamoureux at paras. 12 and 13 and R v Greenough, 2014 SKCA 57, 438 Sask R 154 at paras 21–23). c. The 2008 Amendments [33] When the Tackling Violent Crime Act came into force on July 2, 2008, it read as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things—that theapproved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in thedetermination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that theconcentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time whenthe offence was alleged to have been committed; (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, orthat an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of (

i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time whenthe offence was alleged to have been committed; (d.1) if samples of the accused’s breath…have been taken…and the results of the analyses show a concentration of alcohol in bloodexceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in theaccused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in theabsence of evidence tending to show that the accused’s consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when theoffence was alleged to have been committed, and (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (

c) or (d), as the case may be, at the time when thesample or samples were taken; (Emphasis added) [34] The statutory amendments affected the evidence that could be adduced to rebut the presumption of accuracy and the firstpresumption of identity. As can be seen from ss. 258(1)(c)(iv) and (d.01),(d.1),(

i) and (ii) above, as originally proclaimed, the accusedhad to, 1. raise a doubt that the instrument was functioning or was operated properly;

2. show that the malfunction or improper operation of the instrument resulted in the determination that his or her blood alcohol levelexceeded the legal limit; and 3. show that his or her blood alcohol level would not in fact have exceeded that limit at the time when the offence was alleged to havebeen committed.

Whereas the evidence needed to satisfy the first two requirements relates to circumstances directly associated with the taking of samplesusing the instrument, an accused relying on a Carter defence must also satisfy the third. [35] To satisfy the third requirement (the second presumption of identity), an accused must show that his or her consumption ofalcohol after the time of the offence, but before the samples were taken, resulted in a reading exceeding 0.80 mg, but that this does notcorrespond to his or her actual blood alcohol level at the time when the offence was alleged to have been committed.

In essence, theaccused is not challenging the test results, only that they were not the blood alcohol levels at the time of the alleged offence (see St-OngeLamoureux at para. 19). d. R v St-Onge Lamoureux [36] On November 2, 2012, the Supreme Court of Canada released St-Onge Lamoureux. Deschamps J., writing for the majority,struck down part of s. 258(1)(c). The Court found that the only way to save the constitutionality of ss. 258(1)(c), (d.01) and (d.1) was tosever words from s. 258(1)(

c) so that it would read as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things—that theapproved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in thedetermination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that theconcentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time whenthe offence was alleged to have been committed; [37] More specifically, the Court found that “[i]n view of the mechanism for applying the statutory presumptions established in s.258(1)(c), … s. 258(1)(

c) and s. 258(1)(d.01) infringe s. 11(

d) of the Charter” (see St-Onge Lamoureux at para. 27). Under the s. 1analysis, the Court concluded that the second and third requirements in s. 258(1)(

c) cannot be justified (see St-Onge Lamoureux at paras.59 and 63). [38] The Court stated that although s. 258(1)(

c) did not operate like the legislation at issue in R v Oakes, (SCC),[1986] 1 SCR 103 and R v Downey, (SCC), [1992] 2 SCR 10, a statutory presumption was established: “although theprosecution is not exempted from proving an essential element of the offence, the accused must nevertheless raise a doubt about a factthat the prosecution has not established in accordance with the rules of criminal evidence” (see St-Onge Lamoureux at para. 23).Therefore, s. 11(

d) is infringed because a judge may be forced to convict despite having a reasonable doubt: … The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shownwhy they can be relied on in the case of the accused who is on trial.

But a judge who entertains such a doubt will nevertheless remainbound by the statutory presumptions and will be required to convict the accused unless the accused rebuts those presumptions inaccordance with the requirements of s. 258(1)(c). … (St-Onge Lamoureux at para. 27) [39] When performing the s. 1 analysis, the Court concluded that the second and third requirements were not justified.

The secondrequirement was identified as being a “heavy burden” as it would be difficult for the accused to identify a specific malfunction and provethat it resulted in a reading according to which his or her blood alcohol level exceeded the legal limit (see St-Onge Lamoureux at para.51). This constituted a “serious infringement of the right to be presumed innocent” and, thus, it could not “be justified in a democraticsociety” (see St-Onge Lamoureux at para. 59). The third requirement did not pass the rational connection stage of the analysis.

Theobjective of the provision was found to give the test results a weight consistent with their scientific value. The Court found no rationalconnection between this objective and the requirement of adducing evidence to raise a doubt that the blood alcohol level of the accusedin fact exceeded 0.80 mg (see St-Onge Lamoureux at para. 62). [40] In

summary, s. 258(1) was found to violate the presumption of innocence in s. 11(

d) because a trial judge must presume thathighly probative evidence is reliable without any evidence demonstrating that fact. However, s. 258(1) is saved under s. 1 because theaccused can free the trial judge from that presumption by showing that the machine was malfunctioning or was operated improperly andthat the malfunction or improper operation of the machine affected the determination of the accused’s blood alcohol level.

3. Application of the principles required to raise a new issue on appeal where the law has changed between conviction and appeal [ 41 ] Mr. Albus’ strongest argument is based on the fact that the Supreme Court in St-Onge Lamoureux has called rebutting the s. 258(1)(

c) presumptions a “defence” (see St-Onge Lamoureux at para. 52 ). This engages the dissenting comments by Harradence J.A., which were endorsed by the Supreme Court in Brown (SCC) that the accused is to have the benefit of a new defence and have his or her culpability determined on the basis of the proper and accurate

interpretation of the Criminal Code . It is true that technically the defence was always available; but, as described by Deschamps J., it imposed a heavy burden on the appellant that could not be justified in a democratic society. [ 42 ] In my opinion, a decision declaring portions of s. 258(1)(

c) violate an accused’s right to be presumed innocent and then severing these portions in order to save the section’s constitutionality is a fundamental restatement of the law that overrules previous common law authority. Statute law is intended to be much more static and stable than the common law, so I find a declaration of unconstitutionality to be a drastic overruling of legislative authority. [ 43 ] As previously stated, a change in the law cannot be both fundamental and predictable. There does not appear to be any appellate-level authority signaling a possible change in the law.

Still, the constitutionality of the impugned sections had been considered in various lower courts across Canada in decisions pre-dating the trial decision in this case.

The results of the constitutional challenges were mixed, with some judges holding s. 258(1) at least in part unconstitutional (see R v Laforge , 2010 QCCQ 7718 ; R v Drolet , 2010 QCCQ 7719 ; and R v Towle , 2011 ONCJ 57 , 268 CCC (3d) 411) and some holding that the entire provision did not violate the Charter rights or, in the alternative, was saved under s. 1 (see R v Roszell , 2011 ABPC 280 , 21 MVR (6th) 38; R v Powichrowski , 2009 ONCJ 490 , 200 CRR (2d) 284; R v Gillespie , 2010 BCPC 207 ; and R v Duff , 2010 ABPC 319 , 261 CCC (3d) 221).

I cannot conclude that these decisions demonstrate an incremental change in the law which would preclude Mr. Albus from raising the issue on appeal. [ 44 ] There appears to be cogent arguments on both sides of this matter. However, the Ontario Court of Appeal in Rollocks recognized that in these situations, “concerns referable to the potential injustice to persons still within the criminal court system weigh heavier in the balance than the more general concerns identified by Justice L’Heureux-Dub é in Brown ” (p. 200). Therefore, I would err on the side of caution and allow the issue to be considered on appeal.

Having determined that this issue can be considered on appeal, the next step is to consider the appropriate remedy. [ 45 ] In my view, a new trial must be ordered. A new trial is the appropriate forum for Mr. Albus to create a sufficient evidentiary foundation to show that the machine was malfunctioning or was operated improperly and that the malfunction or improper operation of the machine affected the determination of his blood alcohol level. There is a potential for an injustice to Mr.

Albus if he is not permitted to pursue the new defence made available as a result of the fundamental restatement of the law in St-Onge Lamoureux . As already noted, the matter was still in the system by virtue of an extant appeal when St-Onge Lamoureux was issued. VI. conclusion [ 46 ] I find that the

summary conviction appeal judge erred in law by declining to order a new trial as the law with respect to “evidence to the contrary” had fundamentally changed after the trial judge rendered her decision. Therefore, leave to appeal is granted; the appeal is allowed and a new trial is ordered. To be fair to the

summary conviction appeal judge, it has to be mentioned that the appeal to this Court was argued on a somewhat different footing than was argued before him. “Herauf J.A.” Herauf J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.