COURT FILE NO.: CR-17-00469-00AP DATE: 2019 01 15
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN P. Quilty, for the Crown Respondent Respondent
- and -
RAVIDAT MOONESSAR M. Rombis, for the Defendant Appellant Appellant
HEARD: November 23, 2018
REASONS FOR JUDGMENT
[On appeal from the judgment of Mr. Justice A. Schreck dated April 21, 2017 and reported at 2017 ONCJ 262, [2017] O.J. No. 2049]
D.E. HARRIS J.
INTRODUCTION
[1] The issue on this summary conviction appeal is one of statutory interpretation. Did Parliament require that a certificate of a qualified breath technician under Section 258(1)(g) of the Criminal Code must be signed in order to be of any evidentiary value on an “over 80” prosecution? There is considerable authority suggesting that the answer is yes and that a signature is necessary: see R. v. Ali, 2018 ONCJ 203, at paras. 29-37, R. v. Hopkins, 2009 NSSC 53, at paras. 32-37, R v Faber (1972), 9 C.C.C. (2d) 353 (B.C.S.C.), R. v. Hache, 2014 NBPC 31, at para. 13.
[2] I agree with the trial judge, Justice A. Schreck, as he then was, that the correct answer is no. Parliament would have expressly required a signature if it concluded that one ought to be necessary. However, if a certificate is signed by the technician, the certificate may be of significant additional assistance to the prosecution over an unsigned certificate. But that is quite a different matter.
THE FACTS
[3] The Appellant was stopped in a police sobriety check and then eventually blew over the legal limit. Only the arresting officer, Constable Misev, testified at trial. It was his evidence that he turned the appellant over to the breathalyzer officer, Constable Leornardo, a qualified breath technician, and watched while the tests were conducted. Soon after, Constable Misev served the appellant with the certificate of qualified technician and a test readout created by the approved instrument used to conduct the tests. The readout was signed by Constable Leornardo as it must be by reason of Section 258(1)(f.1) of the Code but the certificate of qualified technician provided for in Section 258(1)(g) was not signed, likely by inadvertence.
[4] The certificate proved that the appellant was over the legal limit. Justice Schreck consequently convicted the appellant. The appellant now appeals his conviction. The only issue is whether the certificate had any evidentiary weight in light of it not being signed.
SECTION 258(1)(G) OF THE CRIMINAL CODE
[5] Section 258(1)(g) of the Criminal Code, R.S.C. 1985, c. C-46 is the enabling section which authorizes the content and evidentiary use of the certificate. It provides as follows:
S. 258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(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 facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
THE CERTIFICATE DOES NOT EXPLICITLY REQUIRE A SIGNATURE
[6] Consistent with the modern approach to statutory interpretation, words must be read, "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": R. v. Alex, 2017 SCC 37, at para. 24.
[7] First dealing with literal and ordinary meaning, these refer to the assumption that words bear their ordinary and plain meaning unless the contrary is demonstrated: Sullivan on the Construction of Statutes, 6th Ed. Section 3.5-3.7. The literal and ordinary meaning of Section 258(1)(g) are aligned. The subsection does not specifically require that a certificate be signed by the qualified technician. This is its literal and ordinary meaning.
[8] The strongest argument that a signature is not required is the simplest argument. A signature is not required because the statutory provision does not say it is required. This is buttressed by the next step in statutory interpretation, contextual interpretation. Contextual interpretation involves situating the provision within the scheme, object and intention of Parliament. In this regard, the drinking and driving legislation is an elaborate maze of presumptions, hearsay exceptions, and technical stipulations which “simplify and streamline” the trial process: Alex, at para. 2, R. v. Moreau, [1979] 1 S.C.R. 261, at p. 272.
[9] The presumptions in the drinking and driving regime, of which Section 258(1)(g) is one—often referred to as the presumption of accuracy—are "legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps": R. v. St. Pierre, at para. 23, R. v. Gibson, 2008 SCC 16, at para. 14. As said by Justice Lamer (as he then was) in R. v. Oliver, [1981] 2 S.C.R. 240, [1981] S.C.J. No. 81,
…the scheme contemplates all kinds of evidentiary short cuts and confers upon various sorts of certificates special probative value which then is further buttressed by presumptions created by the different scientific analyses; but these presumptions operate only if the analyst and other persons involved in the process followed the elaborate procedures, and used the approved apparatus required under s. 237 [now Section 258].
[10] The provisions are minutely detailed and carefully crafted. Contents of certificates, their evidentiary value and the presumptions which enable proof and skirt the hearsay rule are created. The conditions to ensure the operation of the legislative regime must be strictly adhered to by the prosecution. Otherwise, the benefit of the evidentiary assists provided by the statutory regime are lost.
[11] The absence of a specific signature requirement is of greater interpretive significance because of the context and nature of this scheme. Nothing is casual or accidental within the legislative framework. There is an attention to minute detail. Particularly in light of this context, if Parliament had intended that there be a signature, it would have been clearly spelled out.
EXPRESSIO UNIUS: IT CAN BE SEEN THAT NO SIGNATURE IS REQUIRED AS OTHER SECTIONS IN THE STATUTORY REGIME EXPLICITLY REQUIRE ONE
[12] The provision immediately before Section 258(1)(g), Section 258(1)(f.1) allowing for the admissibility of a printout from an approved instrument, also relates to the work of a qualified technician. However, it expressly requires a signature:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused's breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;
(Emphasis Added)
[13] Expressio unius: To express one thing is to exclude another. To specifically require a signature in Section 258(1)(f.1) suggests that the failure to explicitly require one in Section 258(1)(g) was deliberate. In Sullivan on the Construction of Statutes, 6th Ed., the author states,
§8.55 Expressio unius is based on a reader's legitimate expectation that the text in question will refer to a particular thing expressly. When this expectation is not met, when the text is silent with respect to the thing in question, interpreters infer that the silence was deliberate: the thing is not mentioned because the legislature intended to exclude it. This inference is based on the presumptions of perfection, consistent expression and orderly arrangement.
§8.90 An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. As Laskin J.A. succinctly put it, "legislative exclusion can be implied when an express reference is expected but absent". University Health Network v. Ontario (Minister of Finance), at para. 31 (Ont. C.A.). The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.
[14] This argument is an extension of the first one. The first argument was based on two propositions, i. The section does not explicitly mandate a signature and one is therefore not required; and ii. The expectation that no signature is required is only strengthened in light of the highly specific and technical nature of the legislative scheme. The legislative scheme leaves little to the imagination.
[15] This second argument builds on these normative expectations by incorporating the observation that other sections in the scheme explicitly require a signature. If other sections require a signature—particularly a section immediately before the one in question—it can be concluded that if a signature was intended, the provision would have been drafted to say so.
[16] In the same vein, the principle of statutory interpretation based on consistent expression has some relevance here. Sullivan says in paragraph 8.97:
As much as possible, drafters strive for uniform and consistent expression, so that once a pattern of words has been devised to express a particular purpose or meaning, it is presumed that the pattern is used for this purpose or meaning each time the occasion arises. This convention naturally creates expectations that may form the basis for an implied exclusion argument.
Patterns in legislation are assumed to be intended rather than inadvertent. Once a pattern has been established, it becomes the basis for expectations about legislative intent.
[17] A legislative pattern can be discerned. When a signature is required, it is clearly indicated in the legislative enactment as it was with Section 258(1)(f.1). If the drafters intended to make a signature mandatory, they could easily have mimicked the structure of Section 258(1)(f.1).
THE EXPLICIT RECOGNITION IN THE SECTION THAT THE CERTIFICATE CAN BE SIGNED DOES NOT MEAN THAT IT MUST BE SIGNED
[18] It is clear that Section 258(1)(g) envisages that a certificate can be signed by the qualified breath technician. This appears from the last clause which, following the conditions which must be satisfied in order for the presumption to operate, states that the certificate,
… is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
(Emphasis Added)
[19] The most cogent of the authorities holding that a certificate must be signed, is the decision of Justice P. Burstein in Ali. He interprets this last clause as requiring a signature. Justice Burstein held at paragraph 32,
While it is true that s. 258(1)(g) does not expressly require a breath technician's signature, the plain wording of s. 258(1)(g) makes clear that Parliament expected that a CQT would be signed by the qualified breath technician. The final portion of s. 258(1)(g) -- "is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate" -- was obviously intended to relieve the Crown from having to prove that anything purporting to be a signature on the CQT [certificate of a qualified technician] is actually a signature and is actually the signature of the breath technician in the case. That relief would have been entirely unnecessary if the breath technician's signature was not required in the first place. Indeed, the last six words of that exemption—"appearing to have signed the certificate"—demonstrates that Parliament expected that CQTs would be signed by breath technicians.
(Emphasis in Original)
[20] In Justice Burstein’s view, relieving the Crown of proving the purported signature and that the signee was a designated qualified technician, proved that it was intended the certificate be signed. To a similar effect is the decision in Hache, at para. 13 which relies on the last clause to conclude that signing the certificate is “necessarily implie[d].” I disagree for two reasons.
[21] First, the logic of the premise is not sufficiently rigorous. It is assumed because the section recognizes that a certificate can be signed that it must be signed. This does not necessarily follow. Parliament on the clear language of the provision, simply acknowledged that the certificate could be signed but not that it was an inflexible requirement.
[22] Although they run into each other to some degree, there are two separate and independent components to the last clause in Section 258(1)(g): 1. If all the conditions are satisfied, the contents of the certificate are proved (“is evidence of the facts alleged in the certificate”); and 2. No proof of the signature or the official character—a qualified breath technician—of the person purporting to have signed it is required (“without proof of the signature or the official character of the person appearing to have signed the certificate”).
[23] These two components are linguistically independent. Not only does the language not require a signature, in fact, relieving of the proof of the signature and the status of the signee could be argued to demonstrate the unimportance of a signature. This would accord as well with the sentiment expressed by Justice Durno in R. v. Rebelo, [2003] O.J. No. 4634, 48 M.V.R. (4th) 102,
38 While I accept that certificates are to be strictly construed, the weight of authorities since Noble has favored a pragmatic approach to certificates which contain omissions or typographical errors, provided the accused has not been prejudiced and the error is manifest having regard to all of the evidence.
[24] Furthermore, the argument accepted by Justice Burstein collapses if the signature adds an extra element to the certificate. If this be the case, relieving of proof of the signature has no implications for the substantive content of the certificate itself.
[25] The different facts of this case and of Ali demonstrate that the signature does in fact add a distinct element. In a prosecution in which the certificate is sought to be used, continuity between the test results and the certificate served on the accused must be proven by the Crown. There are two ways to accomplish this: i. A signature with the assistance of the last clause of the Section 258(1)(g) connects the test results conducted by the breath technician to the contents of the certificate; or, alternatively ii. Viva voce evidence establishing that the tests were done, the certificate filled out and then served on the accused.
[26] In this case, the arresting officer Constable Misev testified that he viewed the breath tests being administered and received the breath certificate from Constable Leornardo. Constable Misev testified that Leonardo was the qualified breath technician at the police station. Furthermore, Constable Leornardo signed a printout of the test results and this document was filed at trial under Section 258(1)(f.1). The trial judge relied on this circumstantial chain to make use of the certificate: Moonessar, at paras. 17-20.
[27] Without this combined evidence, because there was no signature on the certificate, the connection between the breath tests and the certificate would have been insufficient.
[28] The Ali case is an example of a situation in which there was not only no signature but the trial judge also found that the connecting inferences between the tests and the certificate were insufficient. The arresting officer did not observe the tests or receive the certificate from the breath technician as Constable Misev did in the case at hand. In addition, there was no completed printout under Section 258(1)(f.1) filed. There was an evidentiary gulf between the tests and the unsigned certificate. Continuity was not established and the certificate was ineffective to prove its contents: Ali, at paras. 40-41.
[29] To obtain the benefit of the certificate, either a signature or viva voce evidence are necessary. A signature can construct, by reason of the last clause of Section 258(1)(g) and the presumptive proof it offers, a bridge between the tests and the qualified technician’s certificate without further proof, although further proof may nonetheless be advisable. Without the signature, circumstantial evidence of the kind adduced in this case will be necessary.
[30] Therefore, the purpose of the last clause of Section 258(1)(g) is to provide this additional assistance for the Crown if the certificate is signed. Its purpose is not to imply that the certificate must be signed. This kind of evidentiary aid is referred to by Wigmore as “authentication by presumed genuineness”, a doctrine aimed at avoiding the inconvenience and expense of calling witnesses to testify: Wigmore on Evidence, Vol. V, Chadbourn Rev., at s. 1579, R. v. Carbano, at paras. 12-13.
[31] In summary, the last clause has an independent evidentiary purpose. The lack of a signature deprives the Crown of one part of the evidentiary benefit conferred by the provision. This refutes the reasoning that there is an imbedded expectation that the certificate must be signed because there would be no purpose in mentioning a signature otherwise. The last clause is purposive; it provides an extra assist to the Crown in a drinking and driving prosecution.
[32] The second basis for disagreement with Justice Burstein relies again on the existence of Section 258(1)(f.1) and is a reprise of the expressio unius reasoning above. As it indicates, Section 258(1)(f.1) explicitly requires that the printout be signed by the breath technician (“the document printed out from an approved instrument and signed by a qualified technician”). It also contains the exact same last clause as Section 258(1)(g), relieving of the necessity to prove the signature or the status of the signee as a qualified technician (“[the print out]… is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it”).
[33] Unlike the expressio unius argument above, this argument focuses not on the first clause of Section 258(1)(f.1) explicitly requiring a signature but on the second clause recognizing that a certificate can be signed. If this clause implies on its own that the certificate must be signed as Justice Burstein held, then why does Section 258(1)(f.1) make it express at the outset of the provision that the print out document be signed? If Justice Burstein is correct, this initial clause is redundant. However, there is a presumption against redundancy in legislative enactments: Winters v. Legal Services Society, at para. 48, R. v. Proulx, 2000 SCC 5, at para. 28, Morguard Properties Ltd. v. Winnipeg (City), [1983] S.C.J. No. 84, [1983] 2 S.C.R. 493, at p. 504, Communities Economic Development Fund v. Canadian Pickles Corp., [1991] S.C.J. No. 89, [1991] 3 S.C.R. 388, [1992] 1 W.W.R. 193, at p. 209.
[34] Giving effect to this presumption and relying on basic logic, the provision is not redundant. The first and second clause in Section 258(1)(f.1) perform different functions. The first clause makes a signature mandatory; the second ensures that no evidence is required to prove who the signee is or their status as a qualified breath technician. This is the same purpose and function as the last clause in Section 258(1)(g). It is part of the evidentiary assist structure in the drinking and driving legislation to make proof easier for the prosecution. Its purpose is expedition. Again, the consistent expression rule of statutory interpretation is germane.
[35] Justice Burstein relies on a similar clause in Section 657.1 of the Code permitting the Crown to rely on an affidavit attesting to the ownership and value of stolen property. The affidavit, is “evidence of the statements … without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.” Justice Burstein concludes that the effect of this clause is to require a signature, bolstering his interpretation of the last clause in Section 258(1)(g) (para. 36):
It is difficult (if not impossible) to accept that, in a criminal case, an affidavit would be afforded any evidentiary value towards proving an essential element without a signature showing that the declarant has attested to the truth of that declaration's contents.
[36] However, an affidavit is not an affidavit without the signature of the affiant: see e.g. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 4.06. It is clearly mandatory. In light of this, the last clause in Section 657.1 has the same function as the last clause in Section 258(1)(g). It averts the laborious requirement of having to produce the person who signed the affidavit, a necessity which would go a long way to defeating the purpose of expedition underlying Section 657.1.
[37] Provisions like Section 657.1 help to clarify the purpose of the last clause in Section 258(1)(g). The evidentiary shortcuts and time and resource savings accomplished would be an exercise in futility without a clause of this kind. Without more, the clause does not mean that a signature is required, only that a signature is permitted and then is presumed to be authenticated.
CONCLUSION
[38] In summary, Justice Schreck was correct when he concluded,
16 With respect, I do not agree with the conclusion in Hopkins and Haché that s. 258(1)(g) requires that a signature be affixed to the certificate. The section provides that if a signature is affixed, there need not be "proof of the signature or the official character of the person appearing to have signed the certificate". However, nowhere is it stated that there must be such a signature. What is required is that it be "a certificate of a qualified technician stating" that certain prerequisites have been met. To be sure, a signature affixed at the bottom of the certificate will in most cases suffice to establish that the contents of the certificate are adopted by the qualified technician. However, this is not the only way that the prerequisites in the section can be established. The real issue in each case will be whether the court has sufficient information to ensure that the results are reliable and whether the accused has sufficient information to challenge the results should he wish to do so.
(Emphasis in Original)
[39] For these reasons, the appellant’s appeal from conviction is dismissed. A breath technician’s certificate need not be signed to have evidentiary value.
[40] As a postscript, the Crown requested that a new rule be formulated requiring the defence to give 30 days notice that they will be challenging the admissibility of a Section 258(1)(g) certificate at trial.
[41] Even if I had the authority to impose such a requirement, which I doubt, I would not do so. One problem, amongst many, is that the question with respect to Section 258(1)(g) is not the admissibility of the certificate but its evidentiary use: Rebelo, para. 19. A notice requirement concerning the evidentiary use of a certificate would have no definable purpose and would be quite unworkable. Another major question is the wisdom of issuing a judicial edict requiring what amounts to a form of defence disclosure in the absence of a clear legislative direction. Important rights of the accused would be implicated. Such a step is unnecessary and unwarranted.
D.E. HARRIS J. Released: January 15, 2019