Between conviction and sentencing, a new rebuttable presumption may amount to a restatement of law significant enough to allow for new arguments on appeal
By: Murray D. Segal
R. v. Albus, 2015 SKCA 121, 2015 CarswellSask 723 (Sask. C.A.)
2. — “Over 80”; Appeal from Summary Conviction Appeal; Between conviction but before Summary Conviction Appeal, law relating to evidence to the contrary changed by release of R. v. St-Onge Lamoureux; Error of law for Summary Conviction Appeal Court not to have dealt with that new ground of appeal; New trial ordered; Criminal Code, s. 253(1)(b), 258(1)(c)(iv).
R. v. Albus, 2015 SKCA 121, 2015 CarswellSask 723 (Sask. C.A.), reversing 2014 CarswellSask 527, 2014 SKQB 219, 450 Sask. R. 136 (Sask. Q.B.): The appellant was convicted of “over 80”. He appealed. Two of three grounds to the Summary Conviction Appeal Court were standard grounds relating to whether the breath samples had been taken in two hours and whether they had been taken as soon as practicable. Those grounds were dismissed. But a third ground had been added. It arose from a change in the law to evidence to the contrary. In between the trial decision to convict and the sentencing the Supreme Court of Canada released its decision in R. v. St-Onge Lamoureux (2012), 294 C.C.C. (3d) 42,  3 S.C.R. 187, 2012 SCC 57, 2012 CarswellQue 10777, 2012 CarswellQue 10778, 96 C.R. (6th) 221, 37 M.V.R. (6th) 1 (S.C.C.), which changed the requirements for rebutting the presumption with evidence to the contrary. At the Summary Conviction Appeal the appellant contended that the limited defence under s. 258(1)(c)(iv) was unavailable to him at trial so he had not called much evidence about it. The Summary Conviction Appeal Court noted there was no indication what evidence the appellant might call to show the Intoxilyzer malfunctioned or was operated improperly. While the appellant had pointed to the change in the law, there was no factual foundation for the Court to consider whether the change in the law could have affected an issue at trial. It was also held that it was insufficient to assert that had the law been different at the time of trial, the trial strategy might also have been different.
While there is a general prohibition against new arguments or issues being raised on appeal, new issues arising between the trial and appeal fall into a separate category. While a rare occurrence, subject to certain requirement, new issues may be raised if the law had shifted substantially in the time between trial and appeal.
The following principles can be extracted:
1. the appellant must be “in the system” in the sense that the appeal must still be extant,
2. the appellant must demonstrate that a fundamental restatement of the law, which overrules established authority and sends the law in a new direction, has occurred,
3. an incremental change in the law is not sufficient,
4. a lack of an evidentiary record is not necessarily fatal if the law has dramatically shifted between the date of conviction and the appeal.
In this case the issue was not raised on appeal so it was important that the change be a fundamental restatement. St-Onge Lamoureux described the recast section as a “defence”. A decision declaring portions of s. 258(1)(c) violate an accused’s right to be presumed innocent and then severing those portions in order to save the section’s constitutionality was a fundamental restatement of the law that overruled previous common law authority. Statute law is meant to be more static and stable than common law so what occurred here was a drastic overruling of the Legislative authority. This was an issued that could be raised on appeal. The proper remedy is to order a new trial.