IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Delorey, 2009 NSPC 1
Date: January 13, 2009
Docket: 1748420/1748421
Registry: Halifax
Her Majesty the Queen
v.
Dennis Michael Delorey
Judge: The Honourable Judge Michael B. Sherar
Heard: January 13, 2009, in Halifax, Nova Scotia
Charges: On or about the 15 day of January, 2007, at, or near Halifax, Nova Scotia, DID unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 253(b) of the Criminal Code;
AND FURTHER that he at the same time and place aforesaid, did have the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to Section 253(a) of the Criminal Code.
Counsel: Rick Woodburn, for the Crown
Wayne Bacchus, for the Defence
By the Court:
[1] In an Information sworn March 5, 2007, Dennis Michael Delorey stands charged that on or about the 15th of January, 2007, at, or near Halifax, Nova Scotia did;
unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 253(b) of the Criminal Code;
AND FURTHER that he at the same time and place aforesaid, did have the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to Section 253(a) of the Criminal Code.
[2] Mr. Delorey was arraigned on the charges on March 7, 2007 and, after several adjournments, pled not guilty and was given a trial date of July 25, 2007. Thereafter, at the Defence request, the trial was adjourned to November 1, 2007. At further request of the defendant, the trial was subsequently adjourned until December 10, 2008. To date, no evidence has been heard.
[3] Under the provisions of s.258 of the Criminal Code, Parliament provided the Crown a summary procedure in which to prove the quantum of alcohol in the body of an accused at the time the accused was operating or had care or control of a motor vehicle in the prosecution of charges under s.253(a) and (b), of the Criminal Code.
[4] Section 258 provides if the following criteria are met:
(a) accused at the time of the offence, occupied the portion of the motor vehicle normally occupied by the operator of a motor vehicle;
(b) the accused provides a sample of his breath pursuant to a valid demand under s.254 of the Criminal Code;
( c ) at least one such sample is obtained from the accused by a qualified technician into an approved screening device within two hours of the time of the alleged offence;
(d) a second sample is similarly obtained from the accused after at least a 15 minute delay;
(e) the qualified technician is of the opinion that valid samples have been obtained and the qualified technician is able to perform a proper analysis of the samples of alcohol in the body of the accused.
[5] Then the law will presume that the quantum of alcohol in the body of the accused, at the time of the offence, is the same quantum of alcohol found in the body of the accused at the time the analysis was carried out, even though an interval of time has elapsed.
[6] At the time of the alleged offence, January 15, 2007, there was a proviso to the foregoing in s.258(1)(c):
evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses.
[7] Additionally, s.258(1)(d.1) indicated:
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 eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood.
[8] Accordingly, if the Defendant presented credible and admissible “evidence to the contrary”, he or she could rebut the evidentary presumptions in s.258. The nature of that evidence was explained in R. v. Carter [1985] OJ. No.1390 (Ontario Court of Appeal). Mr. Justice Finlayson speaking for the Court stated at para 16:
When the blood sample [or breath sample] does not reflect the consumption of alcohol testified to by the appellant [accused], then if the appellant (if he is believed) has raised a doubt as to the accuracy of the reading and it follows that there must have been a breakdown somewhere in the procedure followed in sampling and analyzing the appellant’s blood [or breath].
[9] He earlier stated in the same paragraph:
if the appellant’s evidence is accepted, the blood sample must be wrong, and the appellant is not obligated to speculate where the error might have occurred...
[10] His Lordship adopted the reasoning of McFarlane J.A. in the British Columbia Court of Appeal decision of R. v. Davis (1974) 14 C.C.C. (2d) 513:
...the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limit is “evidence to the contrary” within the meaning of the subsection.
[11] However, effective July 2, 2008, Parliament declared that the content and extent of evidence which could rebut the accuracy of the analysis under s.258(c) has become more circumscribed.
[12] The proviso in s.258(c) now states:
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, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood, and that the concentration 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 when the offence was alleged to have been committed;
[13] Additionally, Parliament added s.258(d.01) and amended s.258(d.1).
(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that 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 when the offence was alleged to have been committed;
(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 ml of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’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 the absence 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 the offence 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 the sample or samples were taken;
[14] The issue for this Court is to which of these two legislative regimes applies to the prosecution of the charges against Mr. Delorey arising out of an alleged incident occurring on January 15, 2007.
[15] In other words, are the legislative changes which came into force on July 2, 2008 applicable to the case before the Court. It is common ground that any charges under s.253 occurring on or after July 2, 2008 would be governed by the new provisions. However, are those same new provisions to be applied retrospectively to charges allegedly occurring before that date.
[16] While this issue may be topical for only a short period of time, it has nonetheless generated a lot of judicial comment. Unfortunately, none to date involving a Court in Nova Scotia.
[17] Whether the amendments are to be interpreted to be applied retrospectively or prospectively depends on whether the amendments are considered to be procedural or evidentiary in nature, and, therefore, operate retrospectively as well as prospectively, or whether they affect vested rights in a substantive way and ought to be applied only prospectively and subsequent to the date the amendments were declared to be in force.
[18] I am grateful to counsel for referring me to numerous authorities which have whether or not the amendments ought to be applied retrospectively. Since Parliament has not specifically indicated in the statute whether the provisions are to be applied retrospectively or not, the Courts are left to consider prior case law and the general principles of statutory interpretation to make that determination.
[19] The Ontario Court of Appeal in R. v. Bickford (1989) 51 C.C.C. (3d) 181 at p.185 concluded:
As a matter of fundamental principle, a statute is not to be construed as having a retro-spective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters. Speaking generally, no person can be said to have a vested right in procedure or a right in the manner of proof that may be used against him: Howard Smith Paper Mills Ltd. V. The Queen and [1957] S.C.R. 403 Wildman v. The Queen (1984) 14 C.C.C. (3d) 321 (S.C.C.). His right is to be tried according to law; that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of his trial.
[20] There is an important difference between the retrospective, as opposed to retroactive, application of a statute. This distinction is significant because of the presumption at common law against the retroactive application of statutes. A statute operates retrospectively when it changes the law in the present and for the future by attaching new consequences to acts that were performed or occurred in the past. A statute operates retroactively when it purports to change the law as it was in the past, typically either through being deemed to have come into force at a time prior to its enactment or by expressly having an effect on past transactions as of a time past. Interpreting a statute so as to apply retroactively is resisted because of the perceived unfairness of interfering with past transactions that were lawful at the time and the related rule of law concerns. Since a provision affecting the manner in which past transactions are to be proven in pending or future proceedings merely changes the present (and not the past) treatment of past acts, it is retrospective, not retroactive and therefore, the presumption against the retroactive application of statutes does not apply.
[21] There is also a common law presumption that legislative bodies do not intend to interfere with vested rights or interests in passing legislation. The latter presumption is consistent with the former because persons do not have rights or interests in court procedures.
[22] In Gustavson Drilling (1964) Ltd. v. Minister of National Revenue [1977] 1 S.C.R. 271, Dickson J. (as he then was) held for the majority of the Supreme Court that “(n)o one have a vested right to continuance of the law as it stood in the past”.
[23] In the case of R. v. Slen [2008] O.J. No.4394, Justice Hearn of the Ontario Court of Justice extensively reviewed the case law that has developed in various Canadian jurisdictions concerning whether the Criminal Code Amendments, Bill C-2 (Tackling Violent Crime Act) proclaimed in force on July 2, 2008 operate retrospectively or not.
[24] At page 30 et seq of the decision dated November 4, 2008, Justice Hearn writes, and I quote extensively:
30 As is evident from the case law that has developed, the issue of whether or not the impugned legislation is retrospective is an issue on which there is not unanimity. The majority of the cases clearly support the position that the legislation is retrospective but there are well-reasoned decisions in Ontario from my colleagues and as well in British Columbia and Alberta that have dealt with the issue and have found the legislation to be prospective only.
31 This is not an easy issue. The determination of the issue of whether or not the legislation is retrospective on initial review has been approached I believe on a consideration of fairness. However, that particular issue is not a relevant or determinative factor when deciding on the retrospective nature of the legislation and the issue of fairness is simply not a factor to be considered in the context of the application currently before the court. That is not to say it may not become an issue in the context of some further of other application.
32 When I look at the case law and the issues that have been expanded and considered by all courts who have found the legislation to be retrospective I am satisfied that the legislation is in fact retrospective. Clearly, the legislation restricts in some ways the impact of what I refer to as the traditional “Carter defence” as it existed prior to July 2, 2008. Now it is necessary in addition to the evidence present previously for the defence to provide evidence to raise at least a reasonable doubt that the approved instrument malfunctioned or was operated improperly and as well that that improper operation or malfunction produced the results showing an accused’s blood/alcohol content exceeded the legal limit. The leading of traditional “Carter” evidence then will not win the day on its own.
33 It is also of note that if the defence is not attacking the accuracy of the results at the time of testing the traditional “Carter” type of evidence is still relevant as it relates to post-offence consumption and/or bolus drinking.
34 I really cannot add a great deal to the reasons and analysis that have been undertaken by my colleagues who have found the legislation to be retrospective. A change of procedure or rule of evidence can operate retrospectively even where it abridges a strategic advantage available to a defendant. Ultimately I find that the amendments regarding what is now necessary to provide evidence tending to show (or as previously referred to, evidence to the contrary ) are procedural and evidentiary in nature. The common law presumption is that legislative bodies do not intend to interfere with vested rights or interests in passing legislation. I find that the amendments in this particular instance do not in any way change the essential elements contained in the definition of the offence and relate only to matters going to prove the offence.
35 Certainly the accused’s position at trial has been adversely affected by the amendment, however the case law clearly established that the validity of the retrospective application of a procedural amendment is not diminished by that result. The type of evidence previously led in attacks on the presumption of accuracy still remains admissible and probative. However, what has in fact been altered is that where the test results are being challenged that evidence alone will not be capable of rebutting the presumptions under s.258(1)(c) and (d.1) The amendments speak to the reliability of a properly operated instrument as established even by toxicologists who have given such evidence on behalf of the defence prior to the amendments. Still, at the same time the legislation preserves the ability to challenge the accuracy of the readings on a reasonable doubt standard providing some evidence is available in addition to typical “Carter” evidence to show that the machine malfunctioned or was improperly operated.
36 (2) ... There is no change to the elements of the offence or the burden of proof and the consequences flowing from revising or altering an evidentiary rule do not affect the characterization as procedural or evidentiary or ultimately the retrospective nature of the amendments.
36 (3) ... The issues of fairness and whether or not an accused in a particular case is able to receive a fair hearing, the issue of disclosure and the issue of full answer and defence are all issues, perhaps together with other issues, which can be addressed in an appropriately fashioned Charter application and founded on evidence in a particular case. These are matters over and above the issue of the determination of retrospectivity.
[25] While not binding on this Court, I find the decision in R. v. Slen persuasive and I adopt the reasoning and conclusion of Justice Hearn.
[26] Accordingly, it is the determination of this Court that the Criminal Code amendments proclaimed July 2, 2008 operate retrospectively and apply to this case.
Order Accordingly,
Dated at Halifax on the 13th day of January, 2009.
__________________________
Michael B. Sherar
Judge of the Provincial Court