His Majesty the King v. Amritveer Chahal, 2026 ONCJ 150

ONTARIO COURT OF JUSTICE

CITATION: R. v. Chahal, 2026 ONCJ 150
DATE: 2026 03 11
COURT FILE No.: Central West Region - Brampton – 24-31113005

BETWEEN:

His Majesty the King

— AND —

Amritveer Chahal

Before: Justice Andrew F. Falls
Heard on: March 4, 2026
Reasons for Ruling released on: March 11, 2026

Counsel:
M. Khan, counsel for the Crown
A. Little, for the defendant, Amritveer Chahal

REASONS FOR DECISION

Sufficiency of Notice of Certificate of Qualified Breath Technician (“CQT”)

Falls, J.:

Introduction, Background and Findings of Fact

1Amritveer Chahal is before the court charged with a single count of operating a motor vehicle with a blood alcohol concentration equal to or in excess of the legal limit.

2The trial commenced before me on March 4th, 2026. At the beginning of the trial, the Crown sought to file the CQT, Certificate of Analyst, Intoxilyzer Test Record, and s. 4(6) Criminal Code of Canada Notice. Mr. Little strongly opposed the filing of these documents without first establishing compliance with the relevant statutory provisions in the Criminal Code. The Crown argued that the documents could be filed, but it reserved the issue for later in the trial.

3The first Crown witness was the arresting officer. For the purposes of this ruling, nothing turns on her evidence. This officer did not provide any evidence about the CQT or notice thereof. As of my brief oral ruling, the cross-examination of her evidence had not yet been completed. Her examination was paused to allow the Defence and Crown to resolve a disclosure issue that might impact the remainder of the examination.

4The Crown’s second witness was the qualified breath technician (“QBT”). The QBT provided an overview of his interaction with the Defendant, including the times and results of two breath tests that were conducted. The QBT did not provide evidence of the approved instrument's operation. Presumably, he was not asked because the Crown intended to rely upon the CQT. The Crown sought to introduce the CQT, Certificate of Analyst, Intoxilyzer Test Record, and s. 4(6) Criminal Code of Canada Notice through the QBT. Defence Counsel objected to the CQT being identified as a numbered exhibit. He noted that it should properly be marked as a lettered exhibit pursuant to R. v. Kelly, [2020] O.J. No. 5126. Defence Counsel raised the option of conducting a separate admissibility voir dire. Crown Counsel inquired about the basis for the objection, and Counsel advised that the Crown had not proven the prerequisites in s. 320.32(2). The documents were identified as lettered exhibits pending further evidence and argument¹.

5With respect to the CQT, the Crown asked questions about the service of the document. The QBT testified that he showed Mr. Chahal the document and explained the readings. He further testified that the CQT can be used against him. The officer concluded his evidence-in-chief by summarizing his involvement in administering the breath tests and serving the documents. In cross-examination, the QBT agreed that the Peel Regional Police practice is to complete the breath test sequence, then serve the documents by showing them to the accused. An accused is not permitted to retain copies of the documents because they will be taken to a cell. The police retain copies of the documents. The QBT testified that this was what happened in this case. The officer testified that he served the document on the accused by showing and explaining it. Afterwards, the arresting officer or cells officer dealt with it. The QBT agreed that, after he served the documents on the Accused, they were taken away from him. The officer agreed that the accused left the breath room without possession of the CQT. The documents remained in the police’s possession. In re-examination, the QBT advised that the intention was to give the documents to the accused and then to the arresting officer. The QBT advised that Mr. Chahal indicated he understood the documents when they were explained to him.

6No further evidence was tendered about the service or provision of the documents. For example, no evidence was called about whether Mr. Chahal was later provided with a copy of the documents upon his release from the police station. No evidence was tendered that Mr. Chahal received a copy as part of disclosure. Mr. Chahal’s signature is not present on the notice portion of the CQT, indicating he received a copy of the certificate.

7At the conclusion of the QBT's evidence, the Crown sought to file the CQT in evidence as a numbered exhibit. Defence Counsel objected. After confirming that the Crown was not going to call further evidence on this issue, Mr. Little advised he was prepared to argue the issue of notice. Counsel provided a brief overview of his argument that the Crown had not proven the Accused was given a copy of the CQT, relying on the summary conviction appeal case of R. v. Klemp, 2025 ONSC 5612.

8The matter was adjourned to the following morning for argument on the notice issue. I asked counsel to email me a copy of any case law they intended to rely on, so I could review it prior to argument. That evening, Mr. Little provided me with a copy of three cases – R. v. Kelly, [2020] O.J. No. 5126; R. v. Klemp, 2025 ONSC 5612, and R. v. Vellathottam, [2016] O.J. No. 6697.

9At the commencement of the following day, the Crown sought to delay arguing the notice issue pending further evidence in the trial. Mr. Little raised an objection to this request for two reasons. First, the Crown advised they were calling no further evidence on the issue, and the defence would be disadvantaged because they had already provided full notice of their argument on the understanding that the issue was to be argued. Second, Defence Counsel noted that a ruling on this issue may be dispositive of the entire case. The Crown argued that there may be further evidence in the trial relevant to the issue of notice. As I understood the Crown’s submissions, they believed that the Defendant may be able to provide relevant evidence. After clarifying with counsel that there was no further Crown evidence to be called on this issue and that the defence did not intend to call Mr. Chahal on the trial proper, only their Charter argument, the Crown sought to speak with senior Crown counsel. Upon her return, the admissibility of the documents was argued.

10On March 4, 2026, I provided a brief oral ruling that the Crown had not satisfied the preconditions in s. 320.32(2) necessary to rely on the CQT². I did not permit the Crown to tender the CQT as evidence. After my ruling and speaking with senior Crown counsel, the Crown requested a dismissal of the charge³. The following are my reasons for finding that the Crown had not proven the statutory requirements to tender the CQT in evidence.

The Law

11It is not necessary for me to conduct my own review and interpretation of the law in this area. That was helpfully completed in the Kelly and Klemp cases. I adopt and apply the law as outlined in both cases. Indeed, I agree with Defence Counsel that I am bound by stare decisis to follow the law in both summary conviction appeals. I will note the following as a refresher to myself.

12Section 320.32(1) provides an evidentiary shortcut for the Crown to prove the blood alcohol concentration of a defendant charged with excess blood alcohol: see Klemp at para. 35; Kelly at para. 48; R. v. Rousselle, 2025 SCC 35 at para. 41. Section 320.32(2) sets out the statutory requirements for the admission of the CQT. A defendant must be provided with reasonable notice and a copy of the certificate: see Klemp at paras. 27 & 32-37; Rousselle at para. 54.

13Because s. 320.32 provides a shortcut for the admission of what would otherwise be inadmissible hearsay; strict compliance with the provisions of the Criminal Code of Canada is necessary: see R. v. Noble, 1977 169 (SCC), [1978] 1 S.C.R. 632; Vellathottam at para. 11; Klemp at para. 34.

14The determination as to whether the Crown has satisfied the statutory prerequisites in s. 320.32(2) is a finding of fact: see Klemp at para. 16.

15Counsel agreed, for the purposes of this ruling, that the burden is on the Crown on a balance of probabilities: see R. v. MacKinnon, 2003 48350 (ON CA), [2003] O.J. No. 3896 (Ont. C.A.); R. v. Redford, 2014 ABCA 336.

16In the normal course, it would not be difficult for the Crown to prove that a defendant was provided with notice of the Crown’s intention to rely on the certificate and provided with a copy: see Klemp at para. 44; Kelly at para. 95 & 101.

Arguments

17In support of their argument, the Crown renewed the same arguments that were advanced before Justice Durno in Kelly. It can be inferred, as a matter of common practice, that the police would have provided the defendant with a copy of the CQT in his property when he was released from custody. Further, the Crown argued that I can take judicial notice of the fact that these documents are included in disclosure for 80-plus offences.

18The Crown advanced an alternative argument that notice is not required if the Crown calls the QBT to testify. The Crown argued that this eliminates the need for strict compliance with notice of the certificate. The defence had the opportunity to cross-examine the QBT and is therefore not prejudiced by the lack of notice. The Crown was unable to provide any authority directly supporting this position. Instead, the Crown relied on paragraph 11 in Vellathottam. In that paragraph, Justice Adamson cited the Supreme Court in R. v. Noble, 1977 169 (SCC), [1978] 1 S.C.R. 632, noting that strict compliance with the Criminal Code is necessary for the Crown to rely on the shortcut of using the CQT.

19The defence argued that failure to provide Mr. Chahal with a copy of the CQT is fatal to its admissibility. There was no evidence tendered upon which I could make a finding either directly or by inference that a copy of the CQT was provided. Relying on Kelly, Klemp and Vellathottam, the Crown should not be permitted to rely on the CQT.

Analysis & Conclusion

20In this case, there was no evidence that Mr. Chahal received a copy of the CQT. The QBT agreed that, after showing and explaining the document to Mr. Chahal, he had no knowledge of what had happened to it.

21I understand Crown Counsel’s submission that, in the normal course, these documents would be part of disclosure. They are core disclosure. Absent the Crown calling the QBT in every case, the Crown would need to rely on the certificate. Though the Crown did not advance this argument, I note that s. 320.34 adds a statutory disclosure requirement. Though s. 320.34 does not require that a CQT be disclosed, the codification of information necessary to allow the defence to assess the results of the analyses of any sample, in my view, lends further support to the Crown’s argument.

22However, I agree with Justice Durno at paragraph 99 of Kelly where he stated, “Regrettably, in my experience at the bar and on the bench, in the absence of evidence I am unable to conclude that since Stinchcombe one can assume what was disclosed.” I, too, am not prepared to take judicial notice of the fact that these documents are always contained in a defendant’s disclosure. Especially, when doing so would permit the tendering of otherwise inadmissible hearsay of an essential element of the offence.

23Further, there was no evidence from which I could reasonably infer that Mr. Chahal received a copy of the CQT in his property when he was released from custody. For example, a property report was not tendered as evidence. The QBT’s evidence was that he did not know what happened to the documents. I am not prepared to take judicial notice of the fact that these documents are always deposited in an arrestee’s property and provided to them upon their release from custody: see Kelly at paras 93-94.

24On the facts of this case, I cannot conclude that Mr. Chahal was provided with a copy of the CQT.

25In relation to the Crown’s alternative argument that notice is not required to tender the CQT if the Crown calls the QBT to testify, I agree with the Crown’s submission in that if the Crown is not seeking to rely on the CQT, then there is no requirement to provide notice. The Supreme Court has recently reaffirmed that the Crown can prove an accused’s blood alcohol concentration by tendering evidence from the QBT or the CQT: see Rousselle at paras. 51 & 133. The Crown could prove its case by calling viva voce evidence from the QBT. However, I am not aware of any authority that would allow the Crown to forgo the notice requirement by producing the QBT, who can speak to the information in the CQT, when the Crown is relying solely on the CQT. Further assistance would have been helpful on this point.

26If I am mistaken, I note that, factually, relying solely on the QBT's evidence was not an option in this case. Because the QBT’s viva voce evidence did not meet the requirements for admitting the readings, the Crown had to rely on the CQT to prove its case. In essence, the Crown was attempting to rely on the CQT without satisfying the statutory preconditions for its admission.

27The cases relied upon by the defence do not pose an insurmountable obstacle for the Crown. In my view, nothing novel is created by my ruling. It is simply that, in this case, there was an insufficient factual basis for me to conclude, on a balance of probabilities, that Mr. Chahal had been given a copy of the CQT. According to Klemp, that is required.

28Accordingly, I find that the Crown has failed to establish the statutory prerequisites in s. 320.32(2) for the admission of the CQT.

29The Crown’s application to file the CQT is denied for non-compliance with s. 320.32(2).

Footnotes

1. 1Exhibit A - Certificate of Qualified Technician; Exhibit B - Intoxilyzer Test Record; Exhibit C - Notice of Exhibit s. 4(6) of Criminal Code of Canada; Exhibit #D - Certificate of Analyst (Note exhibit D was initially misidentified as exhibit #2. It was later re-identified as exhibit D with the consent of both parties.) The Designation of Qualitied Technician was marked as Exhibit #3.
2. 2The Crown was additionally not permitted to rely on the Certificate of Analyst or s.4(6) Notice. Those documents are of secondary relevance for the purposes of my ruling. The Intoxilyzer Test Records, exhibit B, were unaffected by my ruling.
3. 3The Crown did not seek to rely on s. 320.33 of the Code. Understandably at this stage in the proceedings, with the Crown’s case all but closed and the defence argument fully disclosed, the Crown made a very fair decision to not seek to recall the Qualified Breath Technician, call further evidence or adjourn the proceedings to perfect compliance with s. 320.32(2).