Ontario Court of Justice

Date: 2016-01-08 Court File No.: 13-13669

Between:

Her Majesty the Queen

— AND —

Amandeep Singh

Before: Justice P.F. Band

Heard on: December 14, 2015

Reasons for Decision: January 8, 2016

Counsel:

Ms. C. Sibian — counsel for the Crown
Mr. M. Caroline — counsel for Mr. Singh

Introduction and Issue

Mr. Singh was charged with driving while his blood alcohol content was "Over 80" on December 4, 2014.

This was a one witness "certificate case." That witness was PC Mani Sharifi, the investigating and arresting officer.

The only issue is whether the Crown has proved that Mr. Singh was given a copy of the Certificate of Analysis prior to trial as required by section 258(7) of the Criminal Code.

Mr. Caroline raised the issue at the appropriate time: when the Crown offered the document as an exhibit. On consent, the certificate was marked as a lettered exhibit and Mr. Caroline reserved the right to cross-examine on its admissibility during his cross-examination at large.

The Relevant Evidence

In examination-in-chief, PC Sharifi said that he had "served" the document on Mr. Singh. It contains details of the breath analysis and the requisite language providing notice of its intended use at trial.

He believed that this happened while Mr. Singh was lodged in the police cells. At that time, PC Sharifi also explained the notice provision to Mr. Singh.

In cross-examination, PC Sharifi said that he did not leave the document with Mr. Singh. He agreed with the following suggestion:

So you give him one piece of paper, you ask him to sign for it, and then you take it back to him?

He then placed the document in Mr. Singh's property bag. He agreed that he had no notes confirming that he had done so.

He explained that police practice is to place the document in the detainee's property bag so that it can be provided to him or her upon release.

Mr. Caroline completed his cross-examination and the Crown did not seek to re-examine. However, he was recalled at my request for clarification.

In the ensuing questioning, he corrected himself. In fact, he had not given Mr. Sharifi the certificate. Rather, his practice with prisoners is as follows:

…. With me having a copy of them, what I do is I explain to them what it is.

…. I have them come forward in front of me.

….I explain what it is. The only reason why I did not provide him with a pen is obviously for officer safety reasons, for himself and myself. So what we do is I indicate on the Notice, when it says "In cells", that means I was unable to have him sign it. At that point I thoroughly explain to him what this document is. I do not provide that document through the cells to him. Once he understands what it is, he's satisfied with it, I ask him if he has any questions with it, if he does, obviously I'll explain back to him, and I would indicate on it that if he's in cells, which he is unable for him to sign it. And at that point I will bring it back, put it with his properties.

….I will bring back the paper that belong to him, put it in his properties, that will later be released back to him when he gets released.

He said nothing about the contents of Mr. Singh's personal property, and agreed that he did not have personal knowledge that the document was given to him upon release. He could only assume that it had been.

The Law

The parties agree that compliance with s. 258(7) is a prerequisite to the admissibility of the Certificate of Analysis and that where the issue is raised, the Crown must prove compliance on a balance of probabilities.[1] As Justice K.N. Barnes (as he then was) noted in R. v. Cordero, the section calls for strict compliance.[2]

Position of the Parties

The concluding paragraph of the Crown's written submissions encapsulates her position:

Pursuant to the binding case law on what constitutes reasonable notice, a purposive approach to s. 258(7) in light of the current legal context where an accused is given full disclosure and on the basis of P.C. Sharifi's challenged but uncontradicted evidence at trial, the Crown submits that s. 258(7) has been complied with on a balance of probabilities and the certificate ought to be admitted into evidence.

Mr. Caroline argues that the Crown has not proved that Mr. Sharifi ever received a copy of the certificate and that, therefore, it is inadmissible.

Analysis

In light of PC Sharifi's evidence, once corrected, I find that he did not at any time give a copy of the certificate to Mr. Singh. In some instances one might infer that the certificate was given to the accused person upon release, but I am unwilling to draw that inference in this case on a balance of probabilities. PC Sharifi's testimony was contradictory concerning "service," he said nothing specific about Mr. Singh's property and his evidence as to the practice surrounding the return of accused persons' personal property was skeletal.

While the Crown made submissions about disclosure in the post-Stinchcombe era, she did not call any evidence to support the claim that it contained the certificate. Mr. Caroline made no admission as to the contents of the disclosure. Nor was he required to.

I am not willing to infer that the Crown complied with s. 258(7) by way of disclosure on a balance of probabilities in this case.[3]

The Crown's written submissions and authorities focus on s. 258(7)'s notice requirement. As she rightly points out, reasonable notice is a concept, not a document.[4] But none of the cases she filed address failure to give an accused the certificate or stand for the proposition that the requirement is no longer to be obeyed.

In my view, and absent legislative amendment, the obligation to give an accused a copy of the certificate is real.[5]

I note that this is not a case like Cordero, supra, in which Barnes J. found as a fact that the certificate had been disclosed.

It is also unlike R. v. Redford, where police gave the certificate to the accused to sign while in the cells, explained it to him and then took it away for safekeeping. The Alberta Court of Appeal recently held that this constituted sufficient proof of compliance with s. 258(7) even in the absence of proof that the document was ever returned to the accused.[6]

For these reasons, the Certificate of Analysis is inadmissible.

There being no other evidence capable of proving the charge beyond a reasonable doubt, Mr. Singh is entitled to an acquittal.

Released: January 8, 2016

Signed: P.F. Band, J.