Supreme Court of Canada
R. v. Ali, [1980] 1 S.C.R. 221
Date: 1979-06-14
Her Majesty The Queen Appellant;
and
Mohamed Mustapha Ali Respondent.
1979: March 6; 1979: June 14.
Present: Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.
ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND, APPEAL DIVISION
Criminal law—Motor vehicles—Breathalyzer—Amendment to Code—Breath samples—Whether provision for “samples” rather than “sample” retroactive—Criminal Code, R.S.C. 1970, c. C-34, ss. 235, 236, 237—Criminal Law Amendment Act, 1975, 1974-75-76, (Can.), c. 93.
Statutes—Amendment—Motor vehicles—Breathalyzer—Breath samples—Whether provision for “samples” rather than “sample” retroactive—Criminal Code, R.S.C 1970, c. C-34, ss. 235, 236, 237—Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93.
In June 1976, an information was laid by the R.C.M.P. in Newfoundland against the appellant viz. that he had on April 22, 1976, at St. John’s District, Newfoundland, care or control of a motor vehicle while having a blood alcohol level in excess of 80 mg. of alcohol in 100 ml. of blood contrary to s. 236 of the Criminal Code. Following a trial on August 3, 1976 and on May 5, 1977, the appellant was convicted on the latter date. The magistrate had received in evidence a certificate under s. 237(1)(f) of the Code in force on April 22, 1976, stating that on the date in question a sample of appellant’s breath had been received into a Borkenstein Breathalyzer and indicated a blood alcohol level in excess of the prescribed limit. The question of law stated was whether the magistrate erred in law in ruling that the amendments to the Code enacted by the Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93, proclaimed May 7, 1976, requiring that more than one breath sample be received into the breathalyzer and analyzed did not apply retrospectively to proof of a charge arising on April 22, 1976. While Noel J. answered the question in the negative and dismissed the appeal, the Appeal Division reversed and quashed the conviction.
[Page 222]
Held: The appeal should be allowed.
Per Pigeon, Dickson, Beetz, Pratte and Mclntyre JJ.: The amendments in question were primarily designed to give police officers the right to require more than one sample of breath from a person suspected of a breach of ss. 234 or 236. A comparison of s. 235 as it was before and after amendment indicates that the amendment related to substantive law. Taking the amendment to s. 235 together with the other amendments it is clear that the prospective character of s. 235 is determinative of the construction to be placed on the new s. 237 which cannot be taken to refer to samples that could not have been legally demanded at the time and that the new s. 237 was intended to apply only when at least two samples of breath have been legally demanded and obtained. Further it is apparent that the new s. 237 could not in fact operate retrospectively. There was no reason to believe that Parliament intended, when passing the amendments, to allow for an interval during which the prosecution of offences already committed would be frustrated because the rules in ss. 235 and 237 would not be available for the enforcement of s. 236. Also the statutory rule in s. 36(d) of the Interpretation Act, R.S.C. 1970, c. I-23, modified the common law by prescribing that the retroactive operation of procedural enactments shall not be absolute but will take place only to the extent that the new rules of procedure may be adapted to the proceedings taken in respect of a matter that has occurred before the new rules came into effect. Thus the new procedure will not apply retrospectively if or to the extent that it cannot be adapted. Here the new procedure could not be adapted and could not apply to a sample taken under the old s. 235. Both s. 36 and the common law therefore constitute insurmountable obstacles to the conclusion reached by the Appeal Division.
Per Ritchie and Estey JJ., dissenting: The circumstances in this appeal were that the appellant was apprehended on April 22, 1976, and required to furnish a sample of his breath under s. 235 of the Code as it then provided. The sample indicated a blood alcohol content in excess of the prescribed limit and had the appellant been charged and tried on the day following his apprehension, the sample so procured would have constituted prima facie evidence of his blood content at the time of his apprehension. No information, however, was laid until June 1, by which time the amendments to the Code had been proclaimed as law. Not only was the laying of the information delayed but the trial did not
[Page 223]
commence until August 3, 1976 whereupon it was adjourned and not concluded until May 5, 1977. The rules of evidence as to the effect of such a certificate had been amended three months before the trial commenced and a year before it concluded. The issue turned on whether the amendment was to be regarded as penal or merely a change in the method of proof. Morgan J.A. in the Appeal Division rightly concluded that Howard Smith Paper Mills v. The Queen, [1957] S.C.R. 403 applied. Here as in that case the amendment neither created an offence nor took away a defence. The only change was in the mode of proof requiring that before the rebuttable presumption could arise more than one sample was required. It was Parliament’s view that a double sampling was necessary to convict and this intention of Parliament was known in the form of an effective law prior to the laying of the charge. Different considerations might well have applied had the charge been laid prior to the date of the amendment.
[Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403 distinguished; R. v. Noble, [1978] 1 S.C.R. 632; Moon v. Durden, [1848] 2 Ex. 22; Kimbray v. Draper (1868), L.R. 3 Q.B. 160; Republic of Costa Rica v. Erlanger, [1876] 3 Ch. D. 62; Gardner v. Lucas, [1878] 3 A.C. 582; Hickson v. Darlow (1883), 23 Ch. D. 690; Upper Canada College v. Smith (1920), 61 S.C.R. 413; R. v. LeSarge (1975), 26 C.C.C. (2d) 388; R. v. MacGregor (1978), 39 C.C.C. (2d) 401; Surtees v. Ellison (1829), 9 B. & C. 750; R. v. The Leeds and Bradford Railway Co. (1852), 18 Q.B. 343; Re Athlumney (1898), 2 Q.B. 547, referred to.]
APPEAL from a judgment of the Supreme Court of Newfoundland, Appeal Division, allowing an appeal from a judgment of Noel J. dismissing an appeal by way of stated case in the matter of a conviction under s. 236 of the Criminal Code. Appeal allowed, conviction restored, Ritchie and Estey JJ. dissenting.
David F. Hurley, for the appellant.
David C. Day, for the respondent.
[Page 224]
The judgment of Ritchie and Estey JJ. was delivered by
RITCHIE J. (dissenting)—This is an appeal from a judgment of the Court of Appeal of Newfoundland allowing an appeal by the accused from a decision rendered by Mr. Justice Noel in answering in the negative a query posed by Magistrate Luther arising out of a case stated by him in relation to the effect of the amendments to s. 237 of the Criminal Code of Canada, which were enacted by the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, s. 18, requiring that more than one sample of the breath of a person suspected of a breach of s. 236 of the Code be received into a breathalizer and analysed by a technician whose certificate under the above amendment must be based on the analysis of more than one sample in order to qualify as prima facie evidence of its contents.
The case stated by Magistrate Luther is in the following terms:
STATED CASE
…I do hereby state and sign the following case for the opinion of the Trial Division of the Supreme Court of Newfoundland.
FACTS
1. On the 21st (sic)* day of June, A.D. 1976, an information was laid under oath before a Justice of the Peace in and for the Province of Newfoundland by Constable D.C. White of the Royal Canadian Mounted Police for ‘that Mohamed Mustapha Ali (DB: 2 NOV 46) of 360 Empire Avenue, St. John’s, Nfld. on the 22nd day of APR. A.D. 1976, at St. John’s District, Newfoundland, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, thereby committing an offence punishable on summary conviction, contrary to Section 236 of the Criminal Code of Canada’.
2. On the 5th day of May, A.D. 1977, following a trial on the 3rd day of August, A.D. 1976 and the 5th day of May, A.D. 1977, during which I received in evidence from Constable D.C. White and marked as an Exhibit ‘D.C.W.1’a Certificate as described in Section 237(1)(f) of the Criminal Code in force on the 22nd day of April, A.D. 1976, which Certificate
[Page 225]
stated inter alia that on the date specified in the Information, namely the 22nd day of April, A.D. 1976, ‘a sample’ of the breath of the said Mohamed Mustapha Ali, Appellant, was received into a Borkenstein Breathalyzer Model 900A following which a qualified technician found that the proportion of alcohol in the blood of the said Mohamed Mustapha Ali, Appellant, exceeded 80 milligrams of alcohol in 100 millilitres of blood, the said Mohamed Mustapha Ali was convicted by me as charged in the Information referred to in paragraph 1 of the within Statement of Facts.
QUESTION OF LAW
1. Did I err in law in ruling that the amendments to Section 237 of the Criminal Code of Canada, enacted by the Criminal Law Amendment Act, 1975, Statutes of Canada 1974‑75-76, Chapter 93, proclaimed in force on the 7th day of May, A.D. 1976 requiring that more than one sample of the breath of a person suspected of a breach of Section 236 of the Criminal Code of Canada be received into a Borkenstein Breathalyzer and analyzed by a qualified technician within the meaning of the Criminal Code, do not apply retrospectively to proof of a charge contrary to Section 236 of the Criminal Code of Canada arising on the 22nd day of April, A.D. 1976.
DATED at St. John’s this 17th day of May, A.D. 1977.
*should be “1st”.
As the stated case indicates, the circumstances in the present appeal were that the accused was apprehended on April 22, 1976 in charge of his motor vehicle at which time he was required to furnish a sample of his breath to the police in an approved breathalizer in accordance with the provisions of s. 235 of the Criminal Code as it then provided. The certificate furnished after analysis of this sample indicated an alcohol content in the blood of more than 80 milligrams of alcohol in 100 millilitres of blood and had Mr. Ali been charged and tried on the day following his apprehension, the sample so procured would have constituted prima facie evidence of his blood content at the time of his apprehension. No information, however, was laid against the respondent until June 1st, of the same year, and in the intervening period the amendment to s. 237 of the Criminal Code referred to above was proclaimed as law.
[Page 226]
The effect of the amendment to s. 237 of the Criminal Code is discussed in the reasons for judgment of this Court in R. v. Noble, where it is said, at p. 634:
It is contended on behalf of the appellant that the combined effect of ss. 235 and 237 of the Criminal Code as amended by the Criminal Code Amendment Act 1975, 1974-75-76 (Can.), c. 93, is that the certificate of a qualified technician based on the analysis of only one sample of breath, constitutes of itself evidence of the blood alcohol content of a person charged under s. 236 at the time of the alleged offence.
I have no doubt that, before the amendment above referred to, such a certificate was sufficient to create a rebuttable presumption as to the blood alcohol content of the blood of such a person but the question here at issue is whether the amendment has had the effect of requiring the certificate to be based on the analysis of two or more such samples before it can be acceptable as evidence of its contents without further proof.
And in concluding the Court said:
…what is at issue here is whether or not a technician’s certificate based on the analysis of only one sample is, of itself, without further proof, prima facie evidence of the statements contained in it and this must depend on whether the rebuttable presumption accorded to such a certificate by s. 237, before the amendment, subsists under the section as amended or whether the new wording requires that the certificate be based upon two or more analyses before it can be accepted without further proof of its contents.
The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.
In the present case, not only was the laying of the information against the respondent delayed for the period which I have mentioned, but the trial did not commence until August 3, 1976, where-
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upon it appears to have then adjourned and was not concluded until May 5, 1977. The rules of evidence respecting the effect to be given to such a certificate as constituting prima facie proof of its contents had, however, been amended three months before the trial commenced and a year before it was concluded.
Unlike the case of Noble, the offence in the present case was allegedly committed before the amendment to s. 237 had been enacted, but the information was laid and the trial held subsequent thereto, and the question to be determined is whether a trial held after the amendment was proclaimed was to be governed by the statutory rules as to proof which were then in force or whether effect was to be given to the provisions of a statute which had long since been repealed. It is important to keep in mind the fact that the amendment in question in no way made any material alteration in the offence created by s. 236 with which the accused is charged. The amendment was concerned exclusively with the method of proof and the nature of the presumption created by the production of the technician’s certificate, although the penalty was increased.
The proposed amendment had received Royal Assent on March 30, 1976, but it was not proclaimed until May 7, 1976, and it is therefore apparent that the Crown was alerted to the nature of the impending amendment at the time when the offence was allegedly committed in April. As I have pointed out, no information was laid until June 1, 1976, and no trial commenced until the 3rd of August of the same year. There is nothing in the stated case to indicate the date at which the technician’s certificate was tendered in evidence and as far as the record is concerned it may have been at any time up to May 1977; but in any event, it was tendered in the course of a trial which was governed by the rules of evidence created and established by the amendment to s. 237.
The issue raised by this appeal turns upon whether the amendment in question can be considered as penal in nature or whether its only effect is to change the method of proof. In this regard I agree with the passage from the reasons for judgment of Mr. Justice Morgan in which he
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concludes that the present circumstances are governed by the judgment of this Court in Howard Smith Paper Mills v. The Queen. Mr. Justice Morgan put the matter thus:
An example of a procedural alteration that was construed as retrospective may be found in Howard Smith Paper Mills v. The Queen (1957) 118 C.C.C 321. In that case one of the questions the Supreme Court of Canada was asked to consider was whether Sec. 41 of the Combines Investigation Act R.S.C. 1952 Ch. 314 as enacted by 1949 (Second Session) Ch. 12 section 3 and as amended by 1952 (Can.) c. 39, S8 was applicable in a prosecution for breaches of that Act which occurred before the repeal of that section and its reenactment in a slightly different form. In his reasons for judgment Cartwright J. at p. 337 held that Sec. 41 was retrospective for the following reasons:
While s. 41 makes a revolutionary change in the law of evidence, it creates no offence, it takes away no defence, it does not render criminal any course of conduct which was not already so declared before its enactment, it does not alter the character or legal effect of any transaction already entered into; it deals with a matter of evidence only and, in my opinion, the learned trial Judge was right in holding that it applied to the trial of the charge before him. (See 1957 S.C.R. 403 at 420.)
These reasons are equally applicable in the construction of the section with which we are here concerned.
In the present case the appellant contended that by giving effect to the provisions of the amended section as controlling a trial which took place after the amendment in relation to an offence alleged to have been committed prior to its enactment, the Court of Appeal was according retrospective effect to a penal statute and in this regard reliance was placed on the reasons for judgment of the Ontario Court of Appeal in R. v. LeSarge, in which case the Court was considering the effect of amendments to the Protection of Privacy Act, 1973-74 (Can.), c. 50, and finding them to be penal in character, ruled against any retrospective effect being given to them. In the course of the reasons for judgment which he delivered on behalf of the Court in that case, Mr. Justice Houlden observed at p. 395:
[Page 229]
There is a well-established principle of statutory interpretation that penal legislation is ordinarily not to be given a retrospective effect: 36 Hals., 3rd ed., p. 425, para. 645. On the other hand, there is an equally well-established principle of statutory interpretation that a statute which deals with matters of procedure only is ordinarily to be given a retrospective application: Maxwell, Interpretation of Statutes, 12th ed. (1969), p. 222. In the present case, the Protection of Privacy Act does not deal with procedural matters only. Rather, it creates three new substantive offences, namely: wilful interception of a private conversation (s. 178.11(1)); possessing, selling or purchasing a device for surreptitious interception of a private communication (s. 178.18(1)); and wilful disclosure of information obtained by interception of a private communication (s. 178.2(1)). Section 178.16 is so inextricably bound up with the substantive provisions of the Protection of Privacy Act that, in my opinion, it cannot be given a retrospective operation.
In the present case, as in the case of Howard Smith the amendment has created “no offence, it takes away no defence, it does not render criminal any course of conduct which was not already so declared before its enactment” and I am satisfied that the only change effected by the amendment was a change in the mode of proof so that the rebuttable presumption created by the production of a technician’s certificate did not arise unless more than one sample had been analysed, whereas before the amendment a technician’s certificate based on only one sample was sufficient to raise a presumption as to proof of its contents.
The case of R. v. MacGregor, was cited on behalf of the Crown as authority for the contention that the amendment to s. 237 was prospective and in this regard Mr. Justice Clement, speaking for the majority of the Appellate Division of the Supreme Court of Alberta observed:
Thus, the three sections operate together. Section 236 has not been altered in any aspect relevant here, and the certificate was effective proof, at the time the charge was laid, of the commission of the offence. Sections 235 and 237 have been altered only to require more than one sample to be given and dealt with. I cannot discern in the amendments any intention of Parliament to obliterate the statutory evidence proving commission of the
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offence, which was effective for the purpose at the time. In my opinion, the amendments are prospective in operation, not intended to frustrate the prosecution of offences already committed. In this I find support in R. v. LeSarge (1975), 26 C.C.C. (2d) 388. I would dismiss the appeal.
[The italics are my own]
Apart altogether from the complicated considerations of the correct categorization of this statute as being either procedural or substantive, there is a much more direct approach to the issue raised here. Parliament has evidently amended s. 237 by replacing the right to prove certain matters by one breath sample analysis with an obligation on the enforcement authorities to make two breath sample analyses as the basis of proof. It is obvious that in the view of Parliament, the exposure of the citizen to conviction of a serious criminal offence should not be based on the risks of error flowing from a single test. Rather it was Parliament’s view that a double sampling was necessary to complete the process of conviction. This Parliament had announced in the form of an effective law prior to the laying of the charge against the respondent. Thus the prosecution, in proving the charge, must conform to the statute as it existed at the time the charge was laid. Otherwise the accused is not, in the view of Parliament, to be found guilty of the offence as charged. Against this clear result brought about by the action of Parliament prior to the laying of the charge against the appellant, the subtleties of the Interpretation Act provisions relating to repealed and amended statutes are of no avail. The guilt or innocence of the accused under these circumstances must flow directly from the plain meaning of the Code provision as it existed when the prosecution laid the charge.
Different considerations might well apply if the charge in the present case had been laid before the date of the amendment, but as I have pointed out, the information was in fact not laid until three
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weeks after the amendment had been proclaimed and this circumstance, in my view, serves to distinguish the present case from that of R. v. MacGregor which in turn was based on the case of R. v. Bourassa.
As I have indicated, I am of opinion that the amendment here in question was procedural and evidentiary and carried no penal consequences such as those referred to in the case of R. v. LeSarge.
In view of all the above, I would dismiss this appeal.
The judgment of Pigeon, Dickson, Beetz, Pratte and Mclntyre JJ. was delivered by
PRATTE J.—The facts of the case and the question of law that arises therefrom are as set out in the case that was stated by His Honour Magistrate Luther for the opinion of the Trial Division of the Supreme Court of Newfoundland pursuant to s. 762 of the Criminal Code:
FACTS
1. On the 21st day [should read 1st] of June, A.D. 1976, an information was laid under oath before a Justice of the Peace in and for the Province of Newfoundland by Constable D.C. White of the Royal Canadian Mounted Police for “that Mohamed Mustapha Ali (DB: 2 NOV 46) of 360 Empire Avenue, St. John’s, Nfld. on the 22nd day of APR. A.D. 1976, at St. John’s District, Newfoundland, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, thereby committing an offence punishable on summary conviction, contrary to Section 236 of the Criminal Code of Canada”.
2. On the 5th day of May, A.D. 1977, following a trial on the 3rd day of August, A.D. 1976 and the 5th day of May, A.D. 1977, during which I received in evidence from Constable D.C. White and marked as an Exhibit “D.C.W. 1” a Certificate as described in Section 237(1)(f) of the Criminal Code in force on the 22nd day of April, A.D. 1976, which Certificate stated inter alia that on the date specified in the Information, namely the 22nd day of April, A.D. 1976, “a sample” of the breath of the said Mohamed Mustapha Ali, Appellant, was received into a Borken-
[Page 232]
stein Breathalyzer Model 900A following which a qualified technician found that the proportion of alcohol in the blood of the said Mohamed Mustapha Ali, Appellant, exceeded 80 milligrams of alcohol in 100 millilitres of blood, the said Mohamed Mustapha Ali was convicted by me as charged in the Information referred to in paragraph 1 of the within Statement of Facts.
QUESTION OF LAW
1. Did I err in law in ruling that the amendments to Section 237 of the Criminal Code of Canada, enacted by the Criminal Law Amendment Act, 1975, Statutes of Canada 1974‑75-76, Chapter 93, proclaimed in force the 7th day of May, A.D. 1976 requiring that more than one sample of the breath of a person suspected of a breach of Section 236 of the Criminal Code of Canada be received into a Borkenstein Breathalyzer and analyzed by a qualified technician within the meaning of the Criminal Code, do not apply retrospectively to proof of a charge contrary to Section 236 of the Criminal Code of Canada arising on the 22nd day of April, A.D. 1976.
By the Criminal Law Amendment Act, 1975 (Can.), (23-24-25 Eliz. II, c. 93, “The Amendment Act”) many provisions of the Criminal Code were amended or replaced, including ss. 235, 236 and 237 which are companion provisions relating to the offence created by s. 236 of driving a motor vehicle with more than a specified proportion of alcohol in the blood.
The amendments to s, 235 were primarily designed to give police officers the right to require more than one sample of breath from a person suspected of a breach of ss. 234 or 236; prior to the amendments, only one sample could be required from a person suspected of having committed the offence described in s. 234.
Section 236 is the main substantive provision; it is creative of the offence and while it was amended by the Amendment Act, it is common ground that the amendments are of no moment for the purpose of this case.
Section 237 deals essentially with the conditions under which a certificate of a qualified technician shall constitute prima facie evidence of its contents as to the proportion of alcohol in the blood of an
[Page 233]
accused; prior to the amendment, the analysis of only one sample of breath was a sufficient basis for such a certificate; since the amendment, the certificate must be based upon not less than two samples before it may be accepted without further proof of its contents. (See R. v. Noble.)
The Amendment Act was assented to on March 30, 1976 and it provided that it was to come into force on a day or days to be fixed by proclamation.
The amendments to ss. 235 and 237 that are relevant here came into force on April 26, 1976 and May 7, 1976 respectively.
The offence with which the respondent was charged was allegedly committed on April 22, 1976, after the passing of the Amendment Act and before the relevant amendments came into effect; however, these amendments had been proclaimed in force when the charge was laid and when the trial took place.
The question to be determined is whether the amendment to s. 237 of the Code requiring that a certificate be based on not less than two samples of breath (rather than one) is applicable to an offence against s. 236 that was committed when only one sample was required, where the charge was laid and the trial took place after the amendment had come into effect.
His Honour Magistrate Luther, before whom the trial took place, held that the amendments to s. 237 did not apply retrospectively and he convicted the respondent of the offence with which he was charged.
The conviction was appealed to the Supreme Court of Newfoundland, Trial Division, upon the stated case and the appeal was dismissed by judgment dated September 8, 1977 (Noel J.).
This judgment was appealed (with leave) to the Supreme Court of Newfoundland, Court of Appeal, which by a unanimous decision of February 8, 1978, allowed the appeal, answered the
[Page 234]
question in the affirmative and consequently quashed the conviction.
The basis of this decision of the Court of Appeal is found in the following passages of the reasons of Chief Justice Furlong and of Morgan J.A.; Chief Justice Furlong said:
The nature of the offence with which the appellant was charged has not been altered by the amendment. The nature of the evidence which is required to sustain the charge has been varied. Thus it is impossible to regard the amendment as anything other than procedural in character. This then brings into operation the exception to the general rule against retrospection; there is nothing in the amending statute to limit its applicability to future offences, and I am satisfied that it applies to offences against S. 236 whenever they occurred.
Morgan J.A., whose reasons were concurred in by Gushue J.A., expressed the same view as follows:
In my view Sec. 237 is worded generally so as to operate retrospectively as well as prospectively. It is a procedural provision providing for the admissibility of evidence before a Court when the matter is heard. It applies to future hearings after the amending sections are proclaimed in force and it applies even though the hearing is in respect of matters that arose before the sections were proclaimed in force.
The decision of the Court of Appeal is attacked on several grounds which may be summarized as follows: (a) the relevant amendments to s. 237 of the Code are not purely procedural in character and should not therefore, in the absence of any adequate indication by Parliament, be construed to operate retrospectively and (b) even if the relevant amendments to s. 237 were purely procedural in character, they should not be construed to operate retrospectively because Parliament has clearly expressed its intent to the contrary.
I propose to deal first with this second ground of attack, assuming therefore—but without deciding—that the Court of Appeal was correct when it characterized the amendments to s. 237 as purely procedural.
[Page 235]
It is not in dispute that the rule as to the retrospective operation of procedural statutes is not absolute; it is only a guide that is intended to assist in the determination of the true intent of Parliament which is the main objective of statutory construction. This presumption in favour of the retrospective operation of procedural enactments must therefore yield to the contrary intent of Parliament; a procedural statute shall not be construed retrospectively when Parliament has expressed its intention to the contrary (see Moon v. Durden, per Parke B., at pp. 42 and 43; Kimbray v. Draper, per Blackburn J., as he then was, at pp. 162 and 163; Republic of Costa Rica v. Erlanger, per Mellish L.J. at p. 69; Gardner v. Lucas, per Lord Blackburn at p. 603.
Given the assumption afore-mentioned, the simple question for determination is whether Parliament has indicated its intent that the amendments to s. 237 should operate prospectively only. The language used by Parliament should first be examined.
The relevant parts of s. 237 as they existed before (“the old s. 237”) and after (“the new s. 237”) the Amendment Act are reproduced hereafter side by side with the amended portions being emphasized for ease of comparison:
| Before |
After |
| 237. (1) In any proceedings under section 234 or 236, … |
237. (1) In any proceedings under section 234 or 236, … |
| (c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), if |
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), if |
| (i) not proclaimed |
(i) not proclaimed |
| (ii) the sample was taken as soon as practicable after the time when the offence was alleged to |
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to |
[Page 236]
| have been committed and in any event not later than two hours after that time, |
have been committed and in any event not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, |
| (iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and |
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and |
| (iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician, |
(iv) a chemical analysis of each sample was made by means of an approved instrument operated by a qualified technician, |
| evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed; |
evidence of the results of the chemical analyses so made is, in the absence of any evidence to the contrary, proof that the proportion 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 proportion determined by such analyses and, where the results of the analyses are different, the lowest of the proportions determined by such analyses; |
| (d) … |
(d) … |
| (not relevant) |
(not relevant) |
| (e) … |
(e) … |
| (not relevant) |
(not relevant) |
| (f) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating |
(f) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating |
| (i) that a chemical analysis of the sample has been made by means of an approved instrument oper- |
(i) that each chemical analysis of the samples has been made by means of an approved instrument |
[Page 237]
| ated by him in which a substance or solution suitable for use in that approved instrument identified in the certificate was used, |
operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used, |
| (ii) the result of the chemical analysis so made, and |
(ii) the results of the chemical analyses so made, and |
| (iii) if the sample was taken by him, |
(iii) if the samples were taken by him, |
| (A) not proclaimed |
(A) not proclaimed |
| (B) the time when and place where the sample and any specimen described in clause (A) was taken, and |
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and |
| (C) that the sample was received from the accused directly into an approved container or into an approved instrument operated by him, |
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician, |
| is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate. |
is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate. |
It is apparent that the construction of par. (c) above cannot be determined without regard to subs. 235(1) to which it refers specifically. The text of this subsection, both before (“the old s. 235”) and after (“the new s. 235”) the Amendment Act is given hereafter with the amendments being underlined for ease of comparison:
| Before |
After |
| 235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234, he may, |
235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234 or 236, |
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| by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable a sample of his breath suitable to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such a sample to be taken. |
he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician referred to in subsection 237(6) are necessary to enable a proper analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. |
This amendment clearly related to substantive law; it gave police officers the right to demand more than one sample of breath so as to enable a proper analysis to be made and made it an offence for a suspect to refuse to give more than one sample of breath; before the amendment, only one suitable sample of breath could be demanded; thus, a person could, without committing an offence, refuse to give more than one sample. It is also clear that this amendment by its very nature may only apply prospectively; the requirement that the samples of breath be taken “forthwith” or within a prescribed time frame makes it a physical impossibility to give any retrospective effect to the new s. 235 Cr.c. (see Hickson v. Darlow; Upper Canada College v. Smith, per Duff J., at p. 422; R. v. LeSarge, per Houlden J.A., at p. 396).
The new s. 237 applies to samples of breath taken under the new s. 235; this is clear from the opening part of par. (c) which refers to “samples of the breath of the accused… pursuant to a demand made under subsection 235(1)”. Under the old s. 235, there could not be a demand for “samples” of breath, only for one sample. It follows that the prospective character of the new s. 235 is determinative of the construction to be
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placed in that regard upon the new s. 237; it cannot be taken to refer to samples of breath that could not be legally demanded at the time of the offence. Also, the other amendments to the old s. 237 make it abundantly clear that the new s. 237 is intended to apply only when at least two samples of breath have been demanded and obtained which was not legally permissible under the old s. 235.
Furthermore, it is apparent that the new s. 237 cannot in fact operate retrospectively. When only one sample of breath has been taken because only one was required and could be demanded at the time, the law cannot make it possible for two samples to have been taken. The retrospective operation of the new s. 237 which has been adopted by the Court of Appeal would effectively result in neither the new nor the old section being operative during the period when the new s. 237 is supposedly intended to operate retrospectively. This can hardly have been the result that was intended by Parliament. Ever since the new offence now described in s. 236 was created in 1969 by the Criminal Law Amendment Act, (1968-69 (Can.), c. 38, s. 16), a special procedure has been available so as to ensure the effective investigation and punishment of this offence. It is indeed apparent that s. 236 cannot, in practice, be effectively enforced in the absence of provisions similar to those now found in ss. 235 and 237. I have no reason to believe that Parliament intended, when passing the Amendment Act to allow for an interval during which the prosecution of offences already committed would be frustrated because the rules contained in ss. 235 and 237 would not be available for the enforcement of s. 236 (R. v. MacGregor, per Clement J.A., at p. 406).
Another fundamental objection to the validity of the decision of the Court of Appeal rests on the rule of construction expressed in s. 36(d) of the Interpretation Act, (R.S.C. 1970, c. I-23), which reads as follows:
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36. Where an enactment (in this section called the “former enactment”) is repealed and another enactment (in this section called the “new enactment”) is substituted therefor,
…
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights, existing or accruing under the former enactment or in a proceeding in relation to matters that have happened before the repeal;
This statutory rule of construction is a modification of the common law rule; it imposes restrictions on what would otherwise be the retrospective operation, in the absence of any contrary intent, of procedural statutes. It prescribes that the retrospective operation of procedural enactments shall not be absolute, but will take place only to the extent that the new rules of procedure may be adapted to the proceedings taken in respect of the matter that has occurred before the new rules came into effect; this clearly means that the new procedure shall not apply retrospectively if or to the extent that it cannot be adapted. Here the new s. 237 requires two samples of breath while the old s. 237 allowed for only one. Clearly, the new procedure cannot be adapted; therefore, it does not apply to a sample of breath taken pursuant to the old s. 235. This result would obtain under s. 36 even though, contrary to what I have said above, s. 237 were, under the rules of the common law, to be regarded as being retrospective in operation. Section 36 thus constitutes, in my opinion, an insurmountable obstacle to the conclusion reached by the Court of Appeal.
We are in the situation where a procedural statute has been repealed and no new rule of procedure substituted for the old one “in relation to matters that have happened before the repeal”. This is precisely a case for the application of s. 35 of the Interpretation Act which, generally, abrogates the common law rule “that, when an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it
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had never existed” Surtees v. Ellison, per Lord Tenterden at p. 752). This section reads in part as follows:
35. Where an enactment is repealed in whole or in part, the repeal does not
…
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;
(d) affect any offence committed against or a violation of the provisions of the enactment so repealed, or any penalty, forfeiture or punishment incurred under the enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed.
Subparagraphs (b) and (e), together with the concluding part of this section, are particularly relevant here. The saving clause contained in the last paragraph permits legal proceedings to be instituted and continued as if there had been no repeal; I have no doubt that it covers the procedure to be followed in respect to such proceeding. Otherwise, the clause would hardly have any practical meaning. Also, subpara. (b) serves to continue the effect of the certificate of analysis that was sought to be introduced into evidence by the Crown under the old s. 237. This certificate of analysis was in respect of one sample of breath given pursuant to the old s. 235; it was given when the old s. 237 was still in force and it is conceded that it would be admissible evidence if this section had not been amended. It is also undisputable that the only object of this certificate, when it was given prior to the amended sections coming into force, was to serve as prima facie evidence of the facts stated therein in connection with a charge
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that might be laid under ss. 234 or 236. Such a certificate would certainly be “affected” if because of the repeal of the section under which it was validly given it were deprived of all evidentiary value and would thus cease to have any usefulness at all. Section 35(b) is precisely intended to prevent such an undesirable result.
In support of the decision of the Court of Appeal, respondent has argued that Parliament’s intention to give a retrospective effect to the new s. 237 was evidenced by the fact that the Amendment Act did not come into effect upon its passing, but only as from the day or days it was proclaimed in force. Reference was made to the English decision of R. v. The Leeds and Bradford Railway Company, where Lord Campbell C.J., said at p. 346:
If it had been enacted that the provisions of the statute should come into operation immediately, I should have said that there was a hardship in their being construed retrospectively, and I should not have been willing so to construe them. But, here, the Act receiving the Royal assent on 14th August, sect. 38 directs that it “shall commence and take effect from the 2d day of October in the year of our Lord 1848.” That seems to be an intimation by the Legislature that they mean to give a time, whether long or short, within which bygone matters of complaint may be brought before justices, and the limitation avoided.
It should be observed that this decision was criticized by Rolfe B. in Moon v. Durden (supra), at pp. 33 and following. In Re Athlumney, Wright J. said at p. 553:
…One exception to the general rule has sometimes been suggested, namely, that where, as here, the commencement of the operation of an Act is suspended for a time, this is an indication that no further restriction upon retrospective operation is intended. But this exception seems never to have been suggested except in relation to statutes affecting procedure, such as Statutes of Limitation, and even in relation to them it is questioned in Moon v. Durden, (supra). Moreover, ss. 6 and 8 of this Act have been held not to be retrospective, notwithstanding, though without reference to this suspensory clause: see Re Raison, ((1891) 63 L.T. 709) and Reg. v. Griffiths ([1891] 2 Q.B. 145).
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I know of no modern case that deals authoritatively with this issue and the existence of the rule, let alone its ambit, has been questioned by modern text book writers. According to Craies (On Statute Law, 7th ed., p. 395) the result of the court decisions is that the rule “cannot be accepted as an undoubted rule of construction”. In Odger’s Construction of Deeds and Statutes, 5th ed., p. 291, it is stated that “the rule is at least doubtful”, and in Maxwell On Interpretation of Statutes, 12th ed., p. 227, one reads “that the exception, if it does exist, is not of any wide application”.
It would therefore appear to be unwise to treat the test suggested by Lord Campbell as a well established canon of construction. Furthermore, I fail to see how this rule, if it existed, could be so rigid as to apply to a situation that affords so many clear indications of a contrary intent on the part of Parliament.
Respondent also relied heavily on the decision of this Court in Howard Smith Paper Mills Ltd. v. The Queen, where it was held that s. 41 of the Combines Investigation Act, R.S.C. 1927, c. 26, as enacted by 1949 (2nd Session), c. 12, s. 3, was procedural in character. Such determination having been made, the question did not arise, evidently because of the nature of the enactment, as to whether s. 41, although procedural in character, should nevertheless be construed prospectively because of the manifested intent of Parliament. The decision of our Court in Howard Smith does not bear at all on the question I have discussed so far and given the assumption that I have made as to the procedural character of s. 237, I fail to see how it can afford any assistance to the respondent.
Being of the view that the appeal should succeed even if the new s. 237 were to be regarded as procedural in character, I do not find it necessary to express any opinion as to the validity of the first ground of attack advanced by appellant against the decision of the Court of Appeal.
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I am therefore of the opinion that the question of law expressed in the stated case should be answered in the negative; it follows that the appeal should be allowed, the decision of the Court of Appeal set aside and the conviction pronounced against the respondent on May 5, 1977 by His Honour Magistrate Donald Luther restored. In accordance with the terms of the order granting leave, the costs of the respondent in this Court are to be borne by the appellant.
Appeal allowed, conviction restored, RITCHIE and ESTEY JJ. dissenting.
Solicitor for the appellant: David F. Hurley, St. John’s.
Solicitor for the respondent: David C. Day, St. John’s.
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