R. v. Dineley (S.), (2012) 436 N.R. 59 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 436 N.R. 59 (SCC);2012 SCC 58

R. v. Dineley (S.) (2012), 436 N.R. 59 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. NO.002

Samuel Dineley (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada and Attorney General of Quebec (intervenors)

(33640; 2012 SCC 58; 2012 CSC 58)

Indexed As: R. v. Dineley (S.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ.

November 2, 2012.

Summary:

In July 2007 Dineley was charged with impaired driving and driving with a blood alcohol level over the legal limit of 80 mg of alcohol in 100 ml of blood. The trial began on June 19, 2008. Dineley's counsel intended to tender a toxicology report in support of a "Carter defence". The hearing was adjourned to July 15, 2008, to enable the Crown to cross-examine the toxicologist. Amendments to the Criminal Code which came into force on July 2, 2008, limited the evidence an accused could adduce to raise doubt about the reliability of breathalyzer test results. Section 258(1)(c) of the Code, as amended, established a presumption of accuracy of breathalyzer test results and a presumption of identity of those results with the blood alcohol level of the accused at the time of the alleged offence. Under s. 258(1)(c), those presumptions would now be rebutted only if the accused lead evidence tending to show that the instrument malfunctioned or was improperly operated. The effect of that provision, together with s. 258(1)(d.01), was to eliminate the Carter defence as an independent means to raise a reasonable doubt about the reliability of breathalyzer test results. The trial judge decided that it was improper for the Crown to obtain an adjournment and then invoke the amendments which came into force in the interim. He did not allow the Crown to argue that the amendments applied to preclude a Carter defence. He accepted the Carter defence and acquitted Dineley. The Crown appealed.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. B51, dismissed the appeal. The court held that the amendments to the Code applied only prospectively. The Crown appealed.

The Ontario Court of Appeal, in a decision reported at (2009), 256 O.A.C. 235, allowed the appeal. The court held that the amendments to the Code were merely evidentiary and they therefore applied to the case. The court ordered a new trial to proceed on the basis of s. 258(1) of the Code as amended. Dineley appealed.

The Supreme Court of Canada, Cromwell, J., McLachlin, C.J.C., and Rothstein, J., dissenting, held that the amendments did not apply retrospectively. The court allowed the appeal and restored the acquittal entered at trial.

Editor's Note: The decision of the Supreme Court of Canada in R. v. St-Onge Lamoureux (A.) determined the constitutionality of the Criminal Code amendments at issue in this case. That decision is reported at 436 N.R. 199.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See first Statutes - Topic 2272 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - Amendments to the Criminal Code which came into force on July 2, 2008, limited the evidence an accused could adduce to raise doubt about the reliability of breathalyzer test results - Section 258(1)(c) of the Code, as amended, established a presumption of accuracy of breathalyzer test results and a presumption of identity of those results with the blood alcohol level of the accused at the time of the alleged offence - Under s. 258(1)(c), those presumptions would now be rebutted only if the accused lead evidence tending to show that the instrument malfunctioned or was improperly operated - The effect of that provision, together with s. 258(1)(d.01), was to eliminate the "Carter defence" (evidence concerning the accused's alcohol consumption combined with an expert opinion calculating the accused's blood alcohol level) as an independent means to raise a reasonable doubt about the reliability of breathalyzer test results - The Supreme Court of Canada held that the amendments did not apply retrospectively - The Carter defence had been eliminated as an independent means to raise a reasonable doubt about the reliability of breathalyzer test results - That indicated that the provisions were not merely procedural; they affected a defence open to an accused and were therefore subject to the presumption against the retrospective application of new legislation - The right of an accused to rely on a defence was a substantive right and new legislation had to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act - A second reason for finding that the amendments affected substantive rights was that, as found in R. v. St-Onge Lamoureux, 2012 SCC 57, these statutory presumptions infringed the constitutionally protected right to be presumed innocent (Charter, s. 11(d)) - The court's conclusion that the infringement was justified in the context of the new legislation did not alter the fact that constitutional rights were affected - This was a further indication that the new legislation affected substantive rights, since constitutional rights were necessarily substantive - When constitutional rights were affected, the general rule against the retrospective application of legislation should apply - Another reason why the amendments should not be found to operate retrospectively was that the accused might need to have access to information concerning the instrument used in his or her case or to operating records - Where the former legislation did not contemplate the gathering of evidence that was required by the new legislation, the new legislation could only be prospective.

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - Amendments to the Criminal Code which came into force on July 2, 2008, limited the evidence an accused could adduce to raise doubt about the reliability of breathalyzer test results - At issue was whether the amendments applied retrospectively - The Supreme Court of Canada stated that "There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively ... However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases ... Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately ... Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions 'procedural' or 'substantive', but in discerning whether they affect substantive rights. Moreover, a further factor may be relevant to the determination of whether the Amendments apply retrospectively. It is whether they require evidence that the accused had no reason to gather under the former legislation" - See paragraphs 10 to 12.

Statutes - Topic 6708

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Procedural and substantive matters defined - [See both Statutes - Topic 2272 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See both Statutes - Topic 2272 ].

Statutes - Topic 6744

Operation and effect - Commencement, duration and repeal - Prospective enactments - What constitutes - [See first Statutes - Topic 2272 ].

Cases Noticed:

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 2].

R. v. Carter (1985), 7 O.A.C. 344; 19 C.C.C.(3d) 174 (C.A.), refd to. [paras. 2, 32].

Angus v. Hart and Angus and Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; 87 N.R. 200; 30 O.A.C. 210, refd to. [paras. 10, 45].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [paras. 10, 47].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [paras. 10, 62].

R. v. Gervais (1978), 43 C.C.C.(2d) 533 (Que. C.A.), refd to. [paras. 18, 72].

R. v. Ali, [1980] 1 S.C.R. 221; 27 N.R. 243; 21 Nfld. & P.E.I.R. 361; 56 A.P.R. 361, refd to. [paras. 24, 78].

R. v. Loiseau, 2010 QCCA 1872, refd to. [paras. 25, 79].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603; 25 Nfld. & P.E.I.R. 509; 68 A.P.R. 509, refd to. [para. 31].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, refd to. [para. 31].

R. v. Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd., [2001] 2 A.C. 349 (H.L.), refd to. [para. 44].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 44].

Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 44].

West v. Gwynne, [1911] 2 Ch. 1 (C.A.), refd to. [para. 45].

Dell Computer Corp. v. Union des consommateurs et al., [2007] 2 S.C.R. 801; 366 N.R. 1; 2007 SCC 34, refd to. [para. 45].

Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, refd to. [para. 45].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 45].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 45].

Ciecierski v. Fenning (2005), 195 Man.R.(2d) 272; 351 W.A.C. 272; 258 D.L.R.(4th) 103; 2005 MBCA 52, refd to. [para. 46].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, refd to. [para. 46].

Quebec (Attorney General) v. Expropriation Tribunal, [1986] 1 S.C.R. 732; 66 N.R. 380, refd to. [para. 46].

Commission de protection du territoire agricole du Québec v. Venne, [1989] 1 S.C.R. 880; 95 N.R. 335, refd to. [para. 46].

Wright v. Hale (1860), 6 H. & N. 227; 158 E.R. 94, refd to. [para. 47].

Moon v. Durden, [1848] 2 Ex. 22, 154 E.R. 389, refd to. [para. 52].

Midland Railway Co. v. Pye (1861), 10 C.B. (N.S.) 179, 142 E.R. 419, refd to. [para. 52].

Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553 (P.C.), refd to. [para. 52].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, refd to. [para. 52].

Ydun, The, [1899] P. 236 (C.A.), refd to. [para. 53].

Republic of Coast Rica v. Erlanger, [1876] 3 Ch. D. 62 (C.A.), refd to. [para. 54].

Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, refd to. [para. 55].

R. v. A.W.E. - see R. v. Endicott.

R. v. Endicott, [1993] 3 S.C.R. 155; 156 N.R. 321; 141 A.R. 353; 46 W.A.C. 353, refd to. [para. 55].

Bingeman v. McLaughlin, [1978] 1 S.C.R. 548; 16 N.R. 55, refd to. [para. 63].

R. v. Taylor (1876), 1 S.C.R. 65, refd to. [para. 72].

Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038, refd to. [para. 72].

R. v. Puskas (J.F.); R. v. Chatwell (D.R.), [1998] 1 S.C.R. 1207; 227 N.R. 1; 110 O.A.C. 374, refd to. [para. 72].

R. v. Gartner (J.J.) (2010), 490 A.R. 268; 497 W.A.C. 268; 2010 ABCA 335, refd to. [para. 79].

R. v. Truong (C.) (2010), 296 B.C.A.C. 248; 503 W.A.C. 248; 2010 BCCA 536, refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c), sect. 258(1)(d.01) [para. 13].

Authors and Works Noticed:

Coté, Pierre-André, The Interpretation of Legislation in Canada (4th Ed. 2011), p. 191 [para. 11].

Phipson, Sidney Lovell, Phipson on the Law of Evidence (9th Ed. 1952), p. 1 [paras. 61, 66].

Roubier, Paul, Le droit transitoire: conflits des lois dans le temps (2nd Ed. 1960), p. 237 [para. 62].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 698 [paras. 49, 51, 53, 66]; 708 [para. 50].

Counsel:

Paul Burstein and J. Thomas Wiley, for the appellant;

Philip Perlmutter and James Palangio, for the respondent;

Jeffrey G. Johnston, for the intervener, the Attorney General of Canada;

Michel Déom, Jean-Vincent Lacroix, Marie-Ève Mayer and Patricia Blair, for the intervener, the Attorney General of Quebec.

Solicitors of Record:

Burstein Bryant, Toronto, Ontario; J. Thomas Wiley, Brampton, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Quebec, Montreal, Quebec, for the intervener, the Attorney General of Quebec.

This appeal was heard on October 13, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on November 2, 2012, including the following opinions:

Deschamps, J. (LeBel, Fish and Abella, JJ., concurring) - see paragraphs 1 to 26;

Cromwell, J., dissenting (McLachlin, C.J.C., and Rothstein, J., concurring) - see paragraphs 27 to 81.