Court of Appeal for Ontario

Date: 2003-10-07 Docket: C39611

Re: Her Majesty the Queen (Appellant) – and – Ronald MacKinnon (Respondent)

Before: O’Connor A.C.J.O., Catzman and Moldaver JJ.A.

Counsel: Mary-Ellen Hurman, For the appellant Bruce J. Daley, For the respondent

Heard: October 3, 2002 Released Orally: October 3, 2003

On appeal from the acquittal entered on Summary Conviction Appeal by Justice Susanne Goodman of the Superior Court of Justice, on January 29, 2003, overturning the conviction imposed by Justice Krelove of the Ontario Court of Justice on April 14, 2000.

Endorsement

[1] The only issue in this appeal is whether it was open to the trial judge to find as a fact that the certificate of a qualified technician given to the appellant by the arresting officer was a copy pursuant to s. 258(7) of the Criminal Code. For reasons that follow, in our view, it was.

[2] Before setting out those reasons, we wish to make it clear that in order to meet the requirements of s. 258(7), a provision that addresses the admissibility of the certificate into evidence, it is only necessary that the trial judge be satisfied, on a balance of probabilities, that the certificate given to the accused is a copy. With respect, the learned Justice on appeal erred in applying the criminal standard of proof to that question.

[3] With respect to the trial judge’s finding that the appellant did receive a copy of the certificate, in our view, the evidence of the arresting officer amply supported it. In chief, the officer testified that he looked at the documents and made sure that the copy was exactly the same as the original. In cross-examination, he went on to say that while he did not compare the original and the copy “word for word” or “letter by letter”, he did “read through just to make sure that they were the same.” In addition to this evidence, in response to a question as to how he knew it was a copy, the officer responded that “[it was] printed out right after [the other one] was printed out.”

[4] In our view, either aspect of the officer’s evidence was sufficient to allow the trial judge to make the finding he did and admit the evidence.

[5] Accordingly, we are respectfully of the view that the summary conviction appeal judge erred in reversing the trial judge’s finding. In the result, leave to appeal is granted, the appeal is allowed and the conviction and sentence imposed at trial are restored.

Signed: “D. O’Connor ACJO” _____ “M. Catzman J.A.” _____ “M.J. Moldaver J.A.”