



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamel, 2020 ONCA 785

DATE: 20201211

DOCKET: C68118

Watt, Trotter & Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Hamel

Respondent

James V. Palangio and Matthew Giovinazzo,
    for the appellant

Adam S. Little, for the respondent

Heard: June 11, 2020 by videoconference

On appeal from the order of Justice David E.
    Harris of the Superior Court of Justice, dated March 19, 2019, with reasons
    reported at 2019 ONSC 1752, allowing an appeal from the conviction entered on April
    24, 2018, by Justice D.A. Harris of the Ontario Court of Justice with reasons
    reported at 2018 ONCJ 279.

Watt J.A.:


[1]

A police officer directed a speeding motorist to
    pull his vehicle over to the shoulder of Highway 407. The motorist complied.

[2]

At the roadside, the officer spoke to the
    motorist, Benjamin Hamel (the respondent).

[3]

As the man spoke, the officer concluded that he
    had reasonable grounds to believe that the respondent's ability to operate his
    motor vehicle was impaired by alcohol. The officer arrested the respondent for
    impaired operation of a motor vehicle.

[4]

At the police station, a qualified technician
    administered a breath test with an approved instrument. The readings produced
    were 200 and 180 mgs of alcohol in 100 mls of blood.

[5]

The Crown elected to proceed by summary
    conviction. After a contested trial before a judge of the Ontario Court of
    Justice, the respondent was found guilty of impaired operation of a motor
    vehicle and of operating a motor vehicle with a prohibited blood alcohol
    concentration. The trial judge convicted the respondent of impaired operation
    and entered a conditional stay on the other count.

[6]

A judge of the Summary Conviction Appeal Court (the
    appeal judge) allowed the respondent's appeal on both counts. On the charge of
    operating a motor vehicle with a prohibited blood alcohol concentration, the
    appeal judge set aside the conditional stay, vacated the finding of guilt, and
    entered an acquittal. On the count of impaired operation, he quashed the
    conviction and ordered a new trial.

[7]

Despite the repeal of the statutory provisions
    in issue in this case, a panel of this court granted the Attorney General leave
    to appeal from the decision of the appeal judge.

[8]

These reasons explain why I would dismiss the
    appeal, and, save in one respect, affirm the order of the appeal judge
    directing a new trial.

The Background Facts

[9]

A brief reference to the circumstances of the
    alleged offences and the procedural history of the prosecution will afford an
    adequate foundation for a discussion of the grounds of appeal advanced.

The Traffic Stop

[10]

In the mid-afternoon of a day in March, PC Kyle Morris
    of the Halton Regional Police Service was on traffic enforcement duty. He was
    in uniform and driving a fully-marked police car in the middle westbound lane
    of Highway 407. In his rear-view mirror, he noticed a vehicle travelling, and
    ultimately passing him, at an excessive rate of speed. The officer estimated
    the vehicle's speed at 150 km/h. The posted speed limit on Highway 407 is 100
    km/h.

[11]

PC Morris activated the emergency equipment on
    his car and moved into the passing lane. The speeding vehicle continued its pace
    for a few seconds. Its driver, the respondent, then moved into the middle lane
    and finally the curb lane before he pulled over to the shoulder of the highway.
    Once on the shoulder, the respondent continued westbound for another 100 to 150
    yards before he came to a stop. PC Morris considered the distance the
    respondent drove on the shoulder of the highway unusual.

The Roadside Discussion

[12]

PC Morris explained to the respondent that he had
    stopped him for speeding. As they spoke, the officer noticed that the
    respondent's eyes were red and glossy, he mumbled when he spoke, and his speech
    was slurred. PC Morris detected a slight odour of alcohol on the respondent's
    breath. The respondent stared at the officer and gave inconsistent accounts of
    the purpose of his travel.

[13]

PC Morris asked the respondent for his ownership
    and insurance, a request he repeated twice. The respondents movements to
    retrieve the documents from the glovebox were slow and deliberate. P.C. Morris
    also noticed a half-empty bottle of vodka on the passenger seat. The officer
    concluded from all the circumstances that he had reasonable grounds to believe
    that the respondent's ability to operate his motor vehicle was impaired by the
    consumption of alcohol.

[14]

The officer had some difficulty placing the
    respondent in the backseat of his police car for transport to the police
    station. The respondent wanted to talk to the officer. PC Morris read the
    respondent his right to counsel and confirmed the respondent's understanding
    and his wish to speak to a lawyer.

[15]

PC Morris did not make a formal demand of the
    respondent that he provide a sample of his breath into an alcohol screening
    device there at the roadside, or into an approved instrument at the police
    station.

The Conversation en route to the Station

[16]

On the way to the police station, the
    respondent, who repeatedly misspoke the officer's name, persistently asked What
    happens now?". The officer explained that at the station the respondent
    would have an opportunity to provide a breath sample and speak with a lawyer.

The Breath Tests

[17]

At the police station, the respondent spoke to
    duty counsel on the telephone. PC Morris completed the sheet required to
    explain his grounds to the qualified technician. The technician later provided
    her certificate of analysis to PC Morris who served a copy of the certificate
    and two other documents on the respondent.

The Trial Proceedings

[18]

At trial, PC Morris was the only witness called
    by the Crown (not counsel on appeal). When the Crown tendered the certificate
    of the qualified technician as an exhibit, the following exchange occurred:

[Crown counsel]: Next exhibit please, Your Honour.

The Court: [Defence counsel]?

[Defence counsel]: Subject to argument, sir.

The Court: Subject to the
Charter
or

[Defence counsel]: Yeah.

The Court: other argument?

[Defence counsel]: The
Charter
, yes.

The Court: Okay, I will make that Exhibit 1
    subject to the
Charter
application.

[19]

After defence counsel concluded his
    cross-examination of PC Morris, the Crown closed his case. Defence counsel
    elected not to call any evidence. He then noted that PC Morris had not
    testified that he made or read a demand that the respondent provide a sample of
    his breath for analysis. The trial Crown acknowledged that he had not elicited
    evidence of a demand from PC Morris. After considering whether he should apply
    to re-open his case to adduce evidence of a demand, the trial Crown abandoned
    this prospect.

[20]

By mutual agreement, the parties conducted the hearing
    as a blended
voir dire
and
trial. The respondent had given notice of his intention to advance arguments
    that infringements of ss. 8 and 10 of the
Charter of Rights and Freedoms
had occurred during the investigation and warranted exclusion of the
    certificate of the qualified technician as evidence.

[21]

In closing submissions, defence counsel
    contended that in the absence of evidence of a demand under former s. 254(3),
    the certificate of the qualified technician was inadmissible as evidence. The
    demand had to be proven by evidence extraneous to the certificate itself. There
    was no such evidence. Defence counsel did not seek leave to raise the absence
    of a demand as a further basis for his claim of a breach of s. 8 of the
Charter
.

[22]

The trial judge raised the prospect that the
    respondent's objection had come too late in the trial as the certificate had
    already been admitted as evidence. The parties returned the next day to
    complete their submissions. The trial judge reserved his decision.

The Decision of the Trial Judge

[23]

The trial judge declined to exclude the
    certificate of analysis on the basis that the Crown had failed to establish a
    proper demand, a precondition to admissibility. In the trial judge's view, the
    argument failed because defence counsel's objection came too late, only after
    the certificate had been received in evidence and the Crown had closed its
    case.

[24]

The trial judge found that PC Morris had
    breached the respondents right under s. 10(a) of the
Charter
when the
    officer failed to tell the respondent that he was no longer being detained for
    speeding, but for impaired operation of a motor vehicle. As a result of this
    infringement, the trial judge excluded the respondent's utterances to PC Morris
    at the roadside.

[25]

The trial judge considered and rejected the
    respondents argument that PC Morris infringed s. 8 of the
Charter
because
    he lacked reasonable grounds to demand that the respondent provide a breath
    sample.

[26]

In his application of s. 24(2) of the
Charter
to the evidence tendered by the Crown, the trial judge excluded the
    respondent's utterances at the roadside in his consideration of whether PC
    Morris had reasonable grounds to demand a sample of the respondents breath. He
    found that even without the utterances, PC Morris had reasonable grounds to
    make the demand. Thus, there was no breach of s. 8 of the
Charter
. The
    trial judge admitted the breath test results as evidence and found the
    respondent guilty of operating a motor vehicle with a prohibited concentration
    of alcohol in his blood.

[27]

The trial judge then considered the sufficiency
    of the evidence to prove the charge of impaired operation. He concluded, on the
    basis of all the evidence, that the respondent was guilty of impaired
    operation. He added that the results of the breath tests confirmed the presence
    of alcohol in the respondent's body when he was driving and for some time
    thereafter.

[28]

The trial judge entered a conviction on the
    count of impaired operation and a conditional stay on the count of operating a
    motor vehicle with a prohibited blood alcohol concentration.

The Decision of the Appeal Judge

[29]

The respondent appealed to the Summary
    Conviction Appeal Court. Among the grounds of appeal advanced were assertions
    that the trial judge erred:

i.

in holding that lack of timely objection
    foreclosed the right of the defence to challenge the admissibility of the
    results of the breath test;

ii.

in giving effect to the presumption of identity
    in former s. 258(1)(c), despite having found that no proper demand for a breath
    sample had been made by PC Morris; and

iii.

in failing to exclude the breath test results
    for infringements of ss. 8 and 10(a) of the
Charter
.

[30]

In written reasons, the appeal judge concluded
    that:

i.

absent evidence of a proper demand, the
    presumptions of accuracy and identity in former ss. 258(1)(c) and (g) were not
    available to the Crown to prove the respondent's blood alcohol concentration at
    the time of the sample or at the time of driving;

ii.

in the absence of the presumptions, there was no
    admissible evidence of the respondent's blood alcohol concentration, thus no
    evidence to support a conviction for operating a motor vehicle with a
    prohibited blood alcohol concentration;

iii.

the trial judge erred in holding that an
    objection was necessary since the issue was not one of admissibility of the
    certificate, but rather whether the contents of the certificate could be used
    as evidence of their truth absent the availability of the presumptions; and

iv.

the decision in
R. v. Alex
, 2017 SCC 37,
    [2017] 1 S.C.R. 967 is irrelevant to the issues raised on appeal.

[31]

The appeal judge allowed the appeal. On the
    count of operation of a motor vehicle with a prohibited blood alcohol
    concentration, he set aside the conditional stay, vacated the finding of guilt,
    and entered an acquittal. Since the trial judge had erred in law in factoring
    in his erroneous over 80 conclusion to fortify his findings of
    impairment", the appeal judge set aside the conviction of impaired
    operation and ordered a new trial on that count.

The Grounds of Appeal

[32]

With leave granted by a panel of this court, the
    Crown appeals from the decision of the appeal judge on two grounds:

i.

the appeal judge erred in law in holding that
    the Crown was required to prove a breath demand under former s. 254(3) to invoke
    the statutory presumptions in former ss. 258(1)(c) and (g); and

ii.

the appeal judge erred in law in holding that
    the trial judge erred in admitting the certificate under former s. 258(1)(g) for
    failure of timely objection to its admissibility.

Ground #1: The Breath Demand Issue

[33]

The first ground of appeal focuses on the effect
    of an absence of evidence of a proper breath demand on the availability of the
    evidentiary shortcuts in former ss. 258(1)(c) and (g) to establish the
    essential elements on the alcohol driving offences with which the respondent
    was charged.

The Evidence at Trial

[34]

PC Morris was the only witness at trial. He was
    not asked whether he made a demand of the respondent that he provide samples of
    his breath to determine the proportion of alcohol in his blood. In answer to a
    question the respondent asked on the way to the police station  What happens
    now?"- PC Morris explained that the respondent would have the opportunity
    to provide a sample of breath and to talk to a lawyer once they arrived at the
    station.

[35]

PC Morris also testified that he filled out an
    Intoxilyzer sheet and advised the qualified technician of the basis for his
    reasonably-grounded belief that the respondent had operated a motor vehicle
    while his ability to do so was impaired by the consumption of alcohol.

The Statutory Provisions

[36]

Former s. 254(3) authorized a peace officer who
    had reasonable grounds to believe that a person was committing, or, within the
    previous three hours, had committed an offence under s. 253 as a result of the
    consumption of alcohol, to demand that the person provide samples of breath
    suitable for analysis to determine the concentration of alcohol in the person's
    blood. The section did not provide a specific form for the demand or the terms
    in which it was to be expressed.

[37]

Former s. 258(1) also applied in proceedings for
    the offences with which the respondent was charged. More specifically, ss. (c)
    and (g) permitted evidentiary shortcuts to facilitate proof of essential
    elements of the offences. The shortcuts helped the Crown prove the blood
    alcohol concentration of an accused from the results of an analysis of the
    accused's breath performed by a qualified technician using an approved
    instrument.

[38]

In their material parts, ss. 258(1)(c) and (g) were
    in these terms:

258(1) In any proceedingsin respect of an
    offence committed under section 253

(c) where samples of the breath of the
    accused have been taken pursuant to a demand made under subsection 254(3), if



evidence of the results of the analyses so made
    is conclusive proof that the concentration of alcohol in the accused's blood
    both at the time when the analyses were made and at the time when the offence
    was alleged to have been committed was,



(g) where samples of the breath of the
    accused have been taken pursuant to a demand made under subsection 254(3), a
    certificate of a qualified technician stating



is evidence of the facts alleged in the
    certificate without proof of the signature or the official character of the
    person appearing to have signed the certificate;

[39]

The final provision of relevance is s. 25(1) of
    the
Interpretation Act
, R.S.C. 1985, c. I-21:

25(1) Where an enactment provides that a
    document is evidence of a fact without anything in the context to indicate that
    the document is conclusive evidence, then, in any judicial proceedings, the
    document is admissible in evidence and the fact is deemed to be established in
    the absence of any evidence to the contrary.

The Arguments on Appeal

[40]

The Crown appellant contends that the appeal
    judge made three errors which, singly or in combination, warrant reversal of
    his conclusion and restoration of the verdicts rendered at trial. The Crown
    says that the appeal judge wrongly concluded that:

i.

the presumptions of accuracy and identity were
    only available to the Crown where a proper breath demand" was established
    on the evidence;

ii.

there was no evidence of a proper breath
    demand"; and

iii.

resort to the
Charter
to exclude the
    breath test results was not necessary and the failure to make timely objection
    to their admissibility was not fatal.

[41]

The Crown appellant submits that in
Alex
,
    the Supreme Court of Canada rejected the plain meaning" approach to the
    common opening words in former ss. 258(1)(c) and (g): where samples of the
    breath of the accused have been taken pursuant to a demand made under
    subsection 254(3), ". The provisions of ss. 258(1)(c) and (g) are
    evidentiary shortcuts. They are intended to streamline proceedings in
    alcohol-driving cases by dispensing with the need to call two extra witnesses 
    the qualified technician and a forensic toxicologist  in every prosecution for
    offences involving excess blood alcohol concentration. The only preconditions
    to be met to invoke these presumptions are those concerned with the reliability
    of the test results and relating those results to the blood-alcohol
    concentration of the accused at the time of the offence. A valid breath demand
    has nothing to do with these scientific criteria and reliability guarantors.

[42]

According to the Crown, the structure of each of
    former ss. 258(1)(c) and (g) consists of an opening part followed by specific
    enumerated criteria that must be met for the provision, the evidentiary
    shortcut, to apply. If a demand were a condition precedent to the application
    of the provision, the demand would be included in the enumerated criteria. But
    it is not. The opening words in the subsection simply designate the nature of
    the sample in issue  a breath sample. This construction is confirmed by the
    current legislation which deletes any reference to pursuant to a demand".

[43]

In addition, the Crown appellant continues, this
    Court has never held that a valid former s. 254(3) demand is a condition
    precedent to reliance on the evidentiary shortcuts of former ss. 258(1)(c) and
    (g). On occasion, this Court has assumed that at least some evidence of a
    demand is required. But these authorities did not consider the effect of the
    decision in
R. v. Rilling
, [1976] 2 S.C.R. 183, which held that the
    certificate was admissible even if no valid s. 254(3) demand had been made.

[44]

In the end, the Crown appellant says, the
    decision in
Alex
is dispositive. There is no need to establish a
    lawful demand to take advantage of the evidentiary shortcuts provided by the
    former ss. 258(1)(c) and (g). Scrutiny of the evidence collection process,
    which involves the seizure of breath, is governed by ss. 8 and 24(2) of the
Charter
.
    Absent such a challenge, compliance with a request for a sample is deemed
    compliance with the demand and engages the evidentiary shortcuts. When that
    challenge is made and fails, as it did here, the evidentiary shortcuts are
    available to the Crown to prove its case.

[45]

The respondent sees it differently. The appeal
    judge got it right. Evidence of a demand to provide a breath sample for
    analysis is a condition precedent to reliance on the evidentiary shortcuts in
    former ss. 258(1)(c) and (g). Neither
Rilling
nor
Alex
says
    otherwise. The issue there was whether the Crown had to establish the
    lawfulness of the demand before it could invoke the presumptions of then ss.
    258(1)(c) and (g) to assist in its proof. But that is not this case. Neither
    decision did away with the requirement of a demand. Absent evidence of a
    demand, the assistance of ss. 258(1)(c) and (g) is not available to the Crown. That
    is this case.

[46]

The respondent reminds us of the extraordinary
    nature of the shortcuts enacted by former ss. 258(1)(c) and (g). To engage
    those shortcuts, the Crown must establish the conditions precedent to their
    operation. This includes a demand for a breath sample. The sample must be
    provided pursuant to" a demand under former s. 254(3). The terms pursuant
    to" are restrictive. They mean in compliance with" and authorized
    by", language that reflects a Parliamentary intention to restrict the
    circumstances in which the presumptions will be of service to the Crown in its
    pursuit of proof.

[47]

The respondent points out that failure to
    establish the conditions precedent to engage the evidentiary shortcuts of
    former ss. 258(1)(c) and (g) does not mean that the breath samples and analysis
    of them are inadmissible as evidence. Former s. 258(1) does not deal with
    samples. Their admissibility is governed by the common law. A qualified
    technician can establish that a breath test was administered and give evidence
    of the results of that analysis. And a toxicologist can read back" the
    results of the breath tests to the time of the offence.

[48]

In this province, the respondent submits, for
    over four decades the law has been that proof of a demand has been considered a
    precondition to reliance on the evidentiary shortcuts in former ss. 258(1)(c)
    and (g). Nothing said in
Alex
, where the concern was about the need to
    prove the
lawfulness
of the demand, or in
Rilling
before it,
    eliminates the need for proof of a demand. There was none here. And the eleventh-hour
    reliance on the respondent's consent to submit to the breath test was not
    advanced at trial and is bankrupt of evidentiary support.

[49]

In any event, the respondent concludes, the
    appeal is from the order of the appeal judge, not his reasons. Even if he erred
    in his analysis, the respondent says, the result would have been no different.
    Absent the availability of the presumption of identity, there was no evidence of
    alcohol in the respondent's blood at the time of the alleged offences, thus
    neither was proven beyond a reasonable doubt.

The Governing Principles

[50]

The principles which govern our decision on this
    ground of appeal are those that interpret the former s. 254(3) and ss.
    258(1)(c) and (g). Their application controls the response to the core question
    of whether the Crown must prove a demand for a breath sample as a condition
    precedent to the application of the evidentiary shortcuts in former ss.
    258(1)(c) and (g).

Breath Demands under Section 254(3)

[51]

Former s. 254(3) authorized a peace officer to
    make a demand that a person provide samples of breath for analysis to determine
    the concentration, if any, of alcohol in the person's blood. In order to make
    the demand, the officer must have reasonable grounds to believe that the person
    was then committing or, within the previous three hours, had committed a
    specified offence as a result of the consumption of alcohol.

[52]

The former provision put in place the initial step
    in an investigative procedure that, carried to its conclusion, would result in
    the seizure of a bodily substance breath  from a person. The subsection did
    not prescribe a form of demand or the words in which the demand was to be made.
    Nor did the provision make any reference to the evidence obtained in the breath
    analysis, much less to its admissibility in a subsequent prosecution.

[53]

In any case in which proof of a demand under
    former s. 254(3) is a fact in issue, the making of the demand may be proven by
    direct evidence, by circumstantial evidence, or by a combination thereof:
R.
    v. Pickles
(1973), 11 C.C.C. (2d) 210 (Ont. C.A.), at p. 216;
R. v.
    Walsh
(1980), 53 C.C.C. (2d) 568 (Ont. C.A.), at pp. 572-73. For example,
    a demand under s. 254(3) may be inferred from the cumulative effect of evidence
    that:

i.

the arresting officer demanded that the accused
    provide a sample of breath into a breathalyzer;

ii.

the arresting officer turned the accused over to
    a person qualified to administer breath tests; and

iii.

the accused was returned to the arresting
    officer, together with a certificate of the breath test results.

See,
Pickles
, at p. 216;
R.
    v. Hall
(1981), 57 C.C.C. (2d) 305 (Alta. C.A.), at pp. 307-9.

[54]

Although not the subject of unqualified
    precedent, it would seem that proof of a demand under former s. 254(3) must be
    made by evidence extrinsic to the contents of the breath certificate tendered
    or admitted in evidence:
Pickles
, at pp. 215-16;
Walsh
, at pp.
    571-72;
R. v. Richard
(1979)
,
    26 NBR (2d) 16 (CA), at paras. 7-11.

[55]

A final point concerns the role of reasonable
    grounds in the propriety of a demand under former s. 254(3). The reasonable
    grounds requirement is not an ingredient of a demand under the subsection such
    that the absence of the grounds results in the demand not being a demand under s.
    254(3). Rather, the absence of the grounds is a substantive provision that may form
    a defence to charges of refusal to provide or failure to comply with a breath
    sample demand:
R. v. Showell
(1971)
,
    4 C.C.C. (2d) 252 (Ont. H.C.) at pp. 255-56.

The Evidentiary Shortcuts

[56]

For many years, the
Criminal Code of Canada
has contained provisions governing the admissibility of certificates of
    qualified persons to assist in proof of essential elements of various
    alcohol-driving offences. In particular, these provisions assist in proof of
    the blood-alcohol concentration of a person operating or in care or control of
    a motor vehicle. Among these provisions are former ss. 258(1)(c) and (g), the
    operation of which are in issue here.

[57]

Each of the individual paragraphs within former s.
    258(1) apply to proceedings under listed sections of the
Criminal Code
.
    The individual paragraphs with which we are concerned have in common these
    opening words:

Where samples of the breath of the accused
    have been taken pursuant to a demand made under subsection 254(3)

There follows in each of former ss.
    258(1)(c) and (g) evidentiary shortcuts of service to the Crown in proving the
    essential elements of a designated offence.

[58]

Former s. 258(1)(g) is a statutory exception to
    the hearsay rule. Once engaged, the provision admits the certificate of a
    qualified technician as proof of the truth of its contents, which include the
    results of the breath tests administered to the accused, without the need for
viva
    voce
evidence:
Alex
, at para. 17. The Crown need not prove the
    signature or official character of the author of the certificate.

[59]

Former s. 258(1)(c) creates two statutory
    inferences that may be presumptively drawn from the certificate. First, a presumption
    of accuracy, that is to say, that the breath readings recorded in the
    certificate are accurate measures of the accused's blood alcohol concentration
    at the time they were taken. This relieves the Crown of having to call as a
    witness the qualified technician who administered the tests to prove that fact
    and their accuracy:
Alex
, at para. 18.

[60]

Second, a presumption of identity. This
    presumptive inference relates the breath test results to the blood alcohol
    concentration of the accused at the time of the alleged offence. Thus, the
    Crown need not call a toxicologist to identify or read back the test readings
    to the time of the offence:
Alex
, at para. 19.

[61]

Taken together, former ss. 258(1)(c) and (g) streamline
    trial proceedings for alcohol driving offences. They do so by permitting an
    accused's blood alcohol concentration at the time of the alleged offence to be
    presumptively proven by filing a certificate of analysis. But these provisions
    do not affect whether the accused's breath readings are admissible or not. They
    affect only the manner of admission which has no connection with the lawfulness
    of the breath demand:
Alex
, at para. 20.

[62]

To take advantage of the evidentiary shortcuts
    in former ss. 258(1)(c) and (g), the Crown need not prove that the s. 254(3) demand
    was lawful, for example, that it was based on reasonable grounds:
Alex
,
    at paras. 5, 11. A contrary conclusion would require two additional witnesses
    to give evidence about issues unrelated to the lawfulness of the demand, thus
    frustrating Parliaments intention to simplify alcohol driving proceedings:
Alex
,
    at para. 12.

[63]

In
Alex
, the appellant argued that a
lawful
demand under s. 254(3) was required before the evidentiary shortcuts of ss.
    258(1)(c) and (g) could apply. The argument included three submissions:

i.

that the plain meaning of the opening words of
    each paragraph require proof of a
lawful
s. 254(3) demand;

ii.

Parliament intended the provisions to include a
    lawful demand pre-condition to provide another protection for the accused in
    the face of police powers of compulsion; and

iii.

the interpretation is necessary to achieve harmony
    with the refusal to comply offence.

See,
Alex
, at para. 22.

[64]

The
Alex
court rejected these
    arguments.

[65]

The court concluded that, although the opening
    words of each paragraph, read in isolation, supported the argument of a lawful
    demand pre-condition, other considerations cast doubt on this interpretation.
    Parliament could have said that the sample had to be taken pursuant to a
lawful

demand
", but did not do
    so. And the structure of the sections, opening part followed by a specific list
    of preconditions all relating to the reliability of the shortcuts, does not
    mesh with this theme. And the phrase pursuant to " simply identifies the
    bodily sample to which the shortcuts apply  a breath sample:
Alex
, at
    paras. 25-30. In addition, the plain meaning of the provision on its own is not
    dispositive. The analysis requires consideration of the context, purpose, and
    relevant legal norms:
Alex
, at paras. 31, 33.

[66]

In addition, ss. 8 and 24(2) of the
Charter
provide effective recourse for challenging the lawfulness of the breath demand
    and a meaningful remedy for infringements  exclusion of the breath results as
    evidence:
Alex
, at para. 42;
R. v. Charette
, 2009 ONCA 310, 94
    O.R. (3d) 721 at para. 48.

The Principles Applied

[67]

I would not give effect to this ground of
    appeal.

[68]

As with the assessment of any claim of legal
    error, the underlying circumstances in which the error is said to have occurred
    are critical.

[69]

The trial judge found that the Crown adduced no
    evidence that PC Morris had made a demand of the respondent that he provide a
    sample of his breath for analysis to determine the blood alcohol concentration.
    There was no direct evidence from PC Morris. And the circumstantial evidence,
    considered as a whole, did not establish a demand.

[70]

However, the trial judge went on to say that he
    did not have to decide the issue, presumably of the effect of the absence of a
    demand on the admissibility of the certificate of the qualified technician,
    because defence counsel had failed to make a timely objection to the
    admissibility of that evidence. The claims of
Charter
infringement by
    the respondent did not warrant exclusion of the certificate. And the
    certificate established not only that the respondent had alcohol in his blood
    at the time of the breath test, but also a specific concentration at the time
    he operated his motor vehicle. This concentration exceeded 80 mg of alcohol in
    100 ml of blood, thus establishing guilt of operating a motor vehicle with a
    prohibited blood alcohol concentration. And it also confirmed other evidence to
    establish guilt of impaired operation.

[71]

The appeal judge held that the absence of evidence
    of a breath demand meant that the Crown could not rely on the presumptive
    inferences of ss. 258(1)(c) and (g) to assist in its proof of the essential
    elements of the offence of operating a motor vehicle with a prohibited blood
    alcohol concentration. The certificate was admissible because it was a
    document within the knowledge of the arresting officer". But proof of a
    demand under s. 254(3) was a condition precedent to access the evidentiary
    shortcuts of ss. 258(1)(c) and (g). Where there was no such proof, the
    presumptive inferences were not engaged, and the trial judge erred in law in
    relying on them and finding the offence of operating a motor vehicle with a
    prohibited blood alcohol concentration proven beyond a reasonable doubt.

[72]

In my respectful view, the appeal judge did not
    err in concluding that the presumptive inferences in former ss. 258(1)(c) and
    (g) were not available to the Crown in the absence of evidence of a demand for
    a breath sample under former s. 254(3). The introductory language common to
    both former provisions, that is to say,

where samples of the breath of the accused
    have been taken pursuant to a demand made under subsection s. 254(3)

designates the evidence to which the
    provision applies:
Alex
, at para. 30. In short form, breath samples
    provided on demand. Not any sample of breath. But one provided as a result of a
    specific demand for it.

[73]

We know from
Alex
that former ss.
    258(1)(c) and (g) provide evidentiary shortcuts the purpose of which is to
    streamline the trials of offences occupying significant portions of provincial
    court dockets across the country. The provisions accomplish this by permitting
    certificate evidence to establish essential elements of an offence, rather than
    requiring additional witnesses to give evidence of what is contained in the
    certificates:
Alex
, at paras. 34, 36. The reasons in
Alex
also
    teach that the Crown is not required to establish the
lawfulness
of
    the demand in order to engage the presumptive inferences of the former
    subsections:
Alex
, at para. 11. An accused who wishes to challenge the
lawfulness
of the seizure of the breath sample, for example because of
    the absence of reasonable grounds for the demand, may do so by invoking s. 8 of
    the
Charter
and seeking exclusion of the evidence under s. 24(2):
Alex
,
    at paras. 42-43. The absence of reasonable grounds for the demand may provide
    an excuse to a charge of failure to comply with the demand, but it does not
    render the certificate inadmissible:
Rilling
, at p. 198;
Charette
,
    at para. 34.

[74]

The issue in
Alex
was whether the Crown
    had to prove the
lawfulness
of the breath demand as a condition
    precedent to reliance on the evidentiary shortcuts of former ss. 258(1)(c) and
    (g). The issue was not, as it is here, whether the Crown was required to
    establish that a demand had been made for a breath sample. Had the
Alex
court considered that the Crown was not even required to establish that a
    demand had been made for a breath sample, I would have expected the court to
    have said so. Yet no such statement appears in the reasons.

[75]

To require the Crown to establish that a demand
    for a breath sample was made is not inconsistent with the decisions in
Alex
and
Rilling
. Nor is it inconsistent with the purpose of the
    evidentiary shortcuts in former ss. 258(1)(c) and (g) as the court in
Alex
explained them. Such a requirement does not demand additional witnesses, such
    as a qualified technician and a toxicologist. As this case exemplifies, all
    that is required is a question or two to elicit the evidence from the arresting
    officer.

[76]

Further, to permit an accused to challenge the
    lawfulness of the demand, as for example for want of reasonable grounds under s.
    8 of the
Charter
, carries with it, at least implicitly, the
    requirement that there be a demand. Likewise, the designation of the subject
    matter of the evidence  samples of the breathtaken pursuant to a demand ".

[77]

I would reject this ground of appeal.

Ground #2: The Timely Objection Issue

[78]

The second ground of appeal takes issue with the
    appeal judge's conclusion that the trial judge erred in rejecting, as untimely,
    trial counsel's submission that the certificate disclosing the respondents
    breath readings should be excluded for want of proof of a demand.

[79]

A brief reference to the origins of the issue at
    trial and the decisions of the trial and appeal judges about it provides the
    frame essential for its determination.

The Trial Proceedings

[80]

After PC Morris gave evidence of the steps he
    took at the police station before he turned the respondent over to the
    qualified technician and received the certificate of analysis, Crown counsel
    tendered the certificate as an exhibit. The trial judge asked defence counsel
    who responded, subject to argument". The trial judge asked, subject to
    the
Charter
or  other argument?" Defence counsel answered, The
Charter
,
    yes". The trial judge admitted the certificate as evidence.

[81]

The hearing proceeded, as the parties had
    agreed, as a blended
voir dire
and trial. The Crown closed its case.
    The defence elected to call no evidence. The trial judge inquired about the length
    of time required for closing submissions.

[82]

Defence counsel then raised the absence of
    evidence of a demand. The trial Crown acknowledged that he had adduced no
    evidence of a demand. He considered, but did not seek, leave to reopen his
    case. Defence counsel submitted that without evidence of a demand, the
    certificate of the qualified technician was not admissible, thus there was no
    evidence of the respondent's blood alcohol concentration at the time the breath
    samples were taken or when he was operating his motor vehicle.

The Decision of the Trial Judge

[83]

The trial judge rejected the submission that the
    certificate was inadmissible for want of proof of a demand. He grounded his
    rejection on the failure of trial counsel to object to the admissibility of the
    certificate in a timely way, invoking this court's decision in
R. v. Gundy
,
    2008 ONCA 284, 231 C.C.C. (3d) 26 in support of his conclusion. He later
    rejected claims of
Charter
infringement to exclude the certificate and
    breath test results, admitted the certificate, and relied on the presumptive
    inferences of former ss. 258(1)(c) and (g) to conclude that the respondent's
    guilt had been proven on both counts.

The Decision of the Appeal Judge

[84]

The appeal judge disagreed. He explained:

It was not, with respect, a question of
    admissibility of the certificate at all. As is the case generally with
    documentary evidence, the certificate was admissible if a proper foundation was
    laid for it. In most cases, the arresting officer will receive the certificate
    from the breathalyzer operator and then will serve it on the accused. It is
    admissible as a document within the knowledge of the arresting officer.

On this basis, the certificate will almost
    inevitably be admissible, subject of course to
Charter
remedies. The
    critical issue is whether the
contents

of the certificate
can
    be used for their truth. Without the assistance of the statutory presumption of
    accuracy, the certificate would have no weight as its contents are hearsay statements
    of the breathalyzer officer. [Emphasis in original.]

The Arguments on Appeal

[85]

The Crown says that the appeal judge erred in
    concluding that the trial judge was wrong in characterizing the dispute as one
    involving the admissibility of the certificate. This was an admissibility issue
    which was not raised in a timely way. As proceedings began, the Crown
    continues, the trial judge made it clear that objections to the admissibility
    of evidence were to be made when or immediately after the evidence was adduced,
    not 10 minutes later. Defence counsel did not object when the certificate was tendered
    and admitted as evidence. The failure to do so was prejudicial to the Crown.
    Had the objection been made when the certificate was tendered and PC Morris was
    still in the witness box, the evidentiary deficit would have been cured, and
    quickly so. The trial judge was right to dismiss it.

[86]

The respondent rejects any suggestion of error
    in the appeal judges analysis or conclusion on the issue. He says that the
    appeal judge properly distinguished between the admissibility of the
    certificate and the failure to establish the preconditions to the availability
    of the evidentiary shortcuts contained in former ss. 258(1)(c) and (g). In this
    case, the respondent contends, the Crown failed to establish the condition
    precedent necessary to substantive use of the certificate. Consequently, the
    Crown failed to establish an essential element of the offences charged  the
    respondent's blood alcohol concentration at the time he was operating his motor
    vehicle. This was not an argument about the admissibility of the certificate,
    which was admissible for what it said on its face, albeit not for the proof of
    the truth of its contents. This was an argument about the adequacy of the
    Crown's proof, thus properly the subject of closing submissions.

[87]

The argument here, the respondent continues, was
    and is that the Crown failed to prove an essential element of the prohibited
    concentration offence. This element, the
actus reus
of the offence,
    was that at the time of operating his motor vehicle the respondent had a
    prohibited blood alcohol concentration. This could be proven in either of two
    ways. First, by calling the qualified technician to establish the blood alcohol
    concentration at the time of testing and a toxicologist to relate it back to
    the time of operation. Or second, by establishing the conditions precedent to
    the former ss. 258(1)(c) and (g), which permitted reliance on the certificate
    as proof of the truth of its contents.

[88]

The respondent characterizes the appellant's
    position as unworkable. It would require an accused to raise the deficiency in
    proof of an essential element of the Crown's case prior to the conclusion of
    the Crown's case. These arguments must await the conclusion of the evidence,
all
the evidence. These arguments are not governed by the precedents on which the
    Crown relies.

The Governing Principles

[89]

Evidence is receivable in a criminal trial if it
    is relevant, material and admissible. Evidence may also be conditionally
    admissible. This is because the presentation of all the evidence takes time.
    Some of the evidence, of necessity, must await the introduction of other
    evidence. Sometimes, an item of evidence depends for its admissibility on
    another item of evidence not yet tendered. Thus, we admit the evidence
    conditionally and confirm it when the other evidence is received: John Henry
    Wigmore,
Wigmore on Evidence,
revised
    by Peter Tillers (Toronto: Little, Brown and Company, 1983
),
at § 14, p. 702.

[90]

As a general rule, the time for determining the
    admissibility of evidence is when it is offered to the court. Likewise, this is
    the time for objections and arguments about admissibility:
Gundy
, at
    paras. 20-21;
R. v. Kutynec
(1992), 70 C.C.C. (3d) 289 (Ont. C.A.), at
    pp. 294-95. However, the judge does have a discretion to allow counsel to
    challenge evidence already received. It is a discretion to be exercised where
    the interests of justice warrant:
Kutynec
, at pp. 296-97;
Gundy
,
    at para. 22. Rules of court enacted under ss. 482 and 482.1 of the
Criminal
    Code
may also contain notice requirements for applications to exclude
    evidence:
Gundy
, at para. 24.

The Principles Applied

[91]

I would reject this ground of appeal. As I will
    explain, I agree with the conclusion of the appeal judge on this issue.

[92]

PC Morris testified that he received the
    certificate from the qualified technician after he had turned the respondent
    over to her to administer the breath tests. On its face the certificate
    recorded the particulars of the test and the readings recorded when they were
    administered. When tendered, the certificate contained relevant and material
    evidence and was conditionally admissible. An objection to its admissibility
    was not then pertinent.

[93]

When tendered and conditionally admissible, the
    certificate, if offered as evidence of the truth of its contents, was hearsay.
    In documentary form, it was an out-of-court statement of the declarant that
    could only become evidence of the truth of its contents upon proof of an
    applicable hearsay exception. To trigger that exception, it was incumbent on
    the Crown to establish that the analysed samples were of breath provided by the
    respondent pursuant to a demand under s. 254(3). The respondent had every
    reason to expect that evidence to this effect would be adduced from PC Morris
    in subsequent questioning. In a similar way, an objection based on a lack of
    reasonable grounds was premature since the officer's evidence was incomplete.

[94]

It was not until the end of the Crown's case
    that it became clear that an argument was available to the respondent that the
    Crown had failed to establish, by direct or circumstantial evidence, that PC
    Morris had demanded of the respondent under former s. 254(3) that he provide breath
    samples for blood alcohol concentration analysis. If the arguments succeeded, two
    consequences followed:

i.

the presumptive inferences available under
    former ss. 258(1)(c) and (g) were not available to prove the respondent's blood
    alcohol concentration at the time he operated his motor vehicle; and

ii.

the Crown had failed to prove the
actus reus
of the offence of operating a motor vehicle with a prohibited blood alcohol
    concentration.

[95]

The essence of the argument advanced reduced to
    one about the adequacy of the Crown's proof of an essential element of the offence.
    This was not an issue controlled by our prior decisions in
Gundy
and
Kutynec
.

[96]

This ground of appeal fails.

Conclusion

[97]

In the result, I would dismiss the appeal and affirm
    the order of the appeal judge, subject to one variation.

[98]

The trial judge found the respondent guilty of
    both counts. He entered a conviction on the count of impaired operation, and a
    conditional stay of the finding of guilt of operation with a prohibited blood
    alcohol concentration. The appeal to the Summary Conviction Appeal Court was of
    the conviction of impaired operation, not the conditional stay.

[99]

The appeal judge considered the stayed count
    first. He set aside the stay and entered an acquittal on that count. He then
    considered the conviction of impaired operation, allowed the appeal, set aside
    the conviction, and ordered a new trial on that count.

[100]

In my respectful view, the appeal judge erred in the way he
    approached the conviction and the stayed count.

[101]

The appeal judge was concerned with the appeal from the respondents
    conviction of impaired operation. Once he had decided the evidentiary issue,
    the appeal judge should have considered the effect of the error he found on the
    validity of the respondents conviction of impaired operation. When he
    concluded that the conviction would not stand, the appeal judge was required to
    allow the appeal, set aside the conviction, and determine whether to order a
    new trial or enter an acquittal. He decided to order a new trial. The
    successful appeal from conviction dissolved the conditional stay on the count
    of operation with a prohibited blood alcohol concentration. It also engaged the
    remedial authority in s. 686(8) of the
Criminal Code
, made applicable
    to the Summary Conviction Appeal through its incorporation by s. 822(1).

[102]

In the exercise of his authority under s. 686(8), the appeal judge
    should have then followed the more appropriate course described by the Supreme
    Court of Canada in
R. v. P. (D.W)
, [1989] 1 S.C.R. 3, and remitted the
    case to the trial court for adjudication on the evidence adduced at the new
    trial. In first considering the stay, rather than the conviction on appeal, he
    erred. In my view, the proper disposition of the stayed count is to set aside
    the stay and order a new trial on both counts. An order to that effect should
    issue.

Released: DW December 11, 2020

David
    Watt J.A.

I
    agree. Gary Trotter J.A.

I
    agree. Harvison Young J.A.


