Old Presumption New Law - Over 80 Trials Become More Complex
Recently drinking and driving laws in Canada were changed to reflect Parliament's goal to streamline these types of criminal matters.
As is often the case, Parliament's intent had the opposite effect. Recent decisions from the Ontario Court of Justice have created uncertainty in the law. This uncertainty in the law has created a more litigious atmosphere and increased the trial time for many Over 80 trials.
These issues are only issues for those transitional Over 80 cases where the charging date predates the legislative changes. The issues relate to what are known in law as the presumptions of identity.
The old law created an evidentiary short cut for the Crown Attorney prosecuting the Over 80 trial. Instead of calling expert evidence to prove that the accused's blood alcohol concentration [BAC] accurately reflected the BAC at the time of driving, the Crown could lead evidence on this issue without further proof if the prerequisites codified in the Criminal Code of Canada were met. This is known as the presumption of identity.
In the decision of Regina v. Shaikh, [2019] O.J. No. 1528, the honourable Justice Burstein held that the Crown could not rely on the presumption of identity unless it called a toxicologist to prove the BAC at the time of driving.
Justice Burstein held that the presumption has been repealed and the Crown cannot rely on the former section 258(1)(c) of the Criminal Code of Canada.
He held that the Crown must lead evidence through a toxicologist to prove the BAC at the time of driving
In paragraph 11, his honour held that section 14 of the Act to Amend the Criminal Code expressly states that the heading before section 249 and sections 249 to 261 of the Criminal Code are repealed
In paragraph 15 the court held that the new Act does not create a new presumption of identity but does create a new presumption of accuracy
So according to Justice Burstein the Crown cannot rely on the presumption of identity
He goes on to explain his reasoning:
- 1. The new legislation is not ambiguous it is clear section 249-261 are repealed;
- 2. The legislation as interpreted is not absurd in principle and does not create an absurd result;
- 3. Parliament turned their mind to this because in section 32 of the Act to amend they expressly provided that the new evidentiary presumption of accuracy is to be applied to the transitional cases;
- 4. The court cannot use its limited scope to read in language to the express repeal of s. 258 and modify legislation at the expense of the accused;
- 5. The principles of R v. Dineley, [2012] S.C.J. No. 58 do not apply because Dineley related to substantive rights of the accused not procedural issues such as the presumptions;
- 6. The Interpretation Act does not support the Crown’s position – the decision of Regina v. Ali , [1980] 1 S.C.R. 221 is distinguishable on its facts – because in Ali the new provisions if applied retroactively would have made it impossible for the Crown to prove any of the transitional cases in the system.
His honour's compelling and in my opinion rightly decided decision has been followed by a number of judges at the Ontario Court of Justice but not all.
In conclusion, until this issue is argued on appeal and until there is a high court ruling on the issue the state of these transitional Over 80 cases will stay in limbo.
ALI PAZUKI
