Court File and Parties

Date: 2017-04-21

Court File No.: Brampton 15-11633

Ontario Court of Justice

Between:

Her Majesty the Queen

– and –

Ravidat Moonessar

Before: Justice P.A. Schreck

Heard on: February 10, March 8, 2017

Reasons for Judgment

Counsel:

• A. Falls, counsel for the Crown
• M. Rombis, counsel for Ravidat Moonessar

SCHRECK J.:

[1]

This case raises the issue of whether a court can rely on an unsigned certificate of a qualified technician in an "over 80" case.

[2]

Ravidat Moonessar was charged with driving while impaired (Count 1) and while the concentration of alcohol in his blood exceeded the legal limit (Count 2). At his trial, the Crown called only the arresting officer and, pursuant to s. 258(1)(g) of the Criminal Code, relied on the certificate of qualified technician to establish Mr. Moonessar's blood alcohol concentration. Mr. Moonessar sought to exclude the certificate on the basis of alleged Charter violations and took the position that the Crown had failed to prove that he was impaired.

[3]

During the trial, it was discovered to the surprise of both counsel that the certificate had not been signed. At the conclusion of the trial on February 10, 2017, I gave brief oral reasons for dismissing the Charter application and for concluding that I had a reasonable doubt on the issue of impairment. Because the issue of the unsigned certificate had risen unexpectedly, the matter was adjourned to March 8, 2017 to give both counsel an opportunity to prepare submissions, following which judgment was reserved.

[4]

For the reasons that follow, I have concluded that the lack of a signature does not foreclose reliance on the certificate provided that the conditions set out in s. 258(1)(g) of the Code have been established. As a result, Mr. Moonessar is found guilty on Count 2.

I. EVIDENCE

[5]

Mr. Moonessar was charged after being stopped for a sobriety check. At his trial, the Crown called only the arresting officer, Cst. Ted Misev, who testified that he had arrested Mr. Moonessar and then taken him to the police station, where he turned him over to Cst. Glen Leonardo, a qualified breath technician. Cst. Misev testified that he remained in the room while Cst. Leonardo conducted the breath tests. Afterwards, Cst. Misev served Mr. Moonessar with documents that had been provided to him by Cst. Leonardo. These were a certificate of qualified technician and a test record apparently created by the approved instrument used to conduct the breath tests.

[6]

The top of the certificate of qualified technician reads as follows:

I, Glen Leonardo of Peel Regional Police in the Province of Ontario, being a person designated by the Solicitor General of the Province of Ontario pursuant to subsection 254(1) of the Criminal Code of Canada as a qualified technician qualified to operate the approved instrument Intoxylizer 8000C, do hereby certify:

The certificate then states that Mr. Moonessar provided two breath samples at 02:29:24 and 02:53:03, resulting in truncated readings of 140 and 130 mg of alcohol per 100 ml. of blood. The certificate is dated but not signed by the qualified technician. There is no issue that except for the lack of signature, the requirements of s. 258(1)(g) of the Criminal Code are otherwise met.

[7]

The Test Record states that the approved instrument was an Intoxylizer 8000C operated by Glen Leonardo and that Mr. Moonessar was the subject of the tests. It states that at 02:29:24 a test of the subject resulted in a reading of 149 and at 02:53:03, a second test resulted in a reading of 138. If truncated, those readings would be 140 and 130.

II. RELEVANT STATUTORY PROVISIONS

[8]

Section 258(1) of the Criminal Code provides as follows:

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;

(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;

III. ANALYSIS

A. The Failure to Object

[9]

Relying on R. v. Gundy, 2008 ONCA 284 at paras. 19-24, the Crown submits that because the defence did not object to the admissibility of the certificate at the time it was tendered, it ought not to be permitted to do so now. However, the issue in this case is not the admissibility of the certificate, but, rather, what use can be made of it: R. v. Rebelo (2003), 48 M.V.R. (4th) 102 (Ont. S.C.J.) at para. 19. Section 258(1)(g) provides that the certificate is evidence of the facts alleged therein provided that certain prerequisites are met. Among these are that the tests were conducted by a qualified technician who certifies, among other things, that the approved instrument was in proper working order as ascertained by an alcohol standard suitable for use in that instrument and that the samples were received from the accused into the instrument. If the absence of the qualified technician's signature means that these prerequisites have not been established, then the certificate cannot be relied on as evidence of the facts alleged therein, regardless of whether it was properly admitted. The real issue in this case is whether the signature is required to establish the prerequisites in s. 258(1)(g).

[10]

Furthermore, defence counsel only became aware of the fact that the certificate was unsigned during the trial. It is not clear to me whether he was aware of this fact at the time the certificate was tendered. He raised the issue at the conclusion of the case and the Crown made no request to re-open the trial. In these circumstances, even if the issue ought to have been raised earlier, I would exercise my discretion to allow counsel to advance the argument: Gundy at para. 22.

B. The Lack of Signature

(i) The Positions of the Parties

[11]

A signature on a document is commonly understood to be an adoption or approval of the document's contents. Mr. Moonessar argues that the lack of a signature in this case means that it has not been established that the qualified technician has certified the contents of the certificate as true.

[12]

Mr. Moonessar relies on two authorities in support of his argument. In R. v. Hopkins, 2009 NSSC 53, the technician's name was typed in the space provided for a signature. As in this case, the technician was identified but did not sign the certificate. The Court concluded that this was a fatal defect (at paras. 32-36):

The wording of section 258(1)(g) is clear in its requirement that a signature be affixed. It is permissive only in that the signature does not have to be proved for the Certificate to be admissible.

There is no evidence in this case that the accused would have been prejudiced in his defense by the fact that the technician entered his name by typing it. However, there are policy considerations that, in my mind, outweigh that fact.

This is a mistake that is unlike those found in the many cases where errors or omissions are capable of being corrected by viva voce evidence. In each of those cases the technician certified the accuracy of the information contained therein. Testimony was then provided to correct errors.

The "signature", however, is the unique and personal attestation of the technician as to the accuracy of the contents of all of the "facts" that are set out in section 258 (1)(g). Without it, the certificate cannot be admitted. The information contained therein is a precondition to admissibility of the results necessary to section 258(1)(c).

This leaves the question as to whether a typed "signature" should be sufficient for this purpose. I have concluded that it is not. There is nothing unique about a typed name. To accept that a typed signature is sufficient sets the threshold for compliance with section 258 too low. It would allow for the possibility of anyone typing the name in the designated signature space and it would still be admissible without the attendance of the technician in court to prove the facts set out therein, or even to verify who filled in the "signature".

A similar conclusion was reached in R. v. Haché, 2014 NBPC 31 at para. 13:

As I see it, a qualified technician's certificate drawn up in accordance with s. 258(1)(g) of the Criminal Code must be signed by the technician if the prosecution wants the judge to apply the presumptions created by the provision in question. The document is evidence of the facts alleged in the document without "proof of the signature or official character of the person appearing to have signed" the document, which necessarily implies that the document must be signed. The document in question was therefore not admitted into evidence.

See also R. v. Faber (1972), 9 C.C.C. (2d) 353 (B.C.C.A.).

[13]

The Crown takes the position that a signature is not a necessary prerequisite for the admission of a certificate, provided that the conditions in s. 258(1)(g) are met. Crown counsel also submits that any deficiencies in the certificate resulting from a lack of signature can be remedied by other evidence.

(ii) The Purpose of the Prerequisites in s. 258(1)(g)

[14]

In my view, a determination of the issue raised in this case requires an examination of the purpose of s. 258(1)(g) and the prerequisites contained in it.

[15]

Section 258(1)(g) provides the Crown with an evidentiary shortcut by creating a presumption of accuracy: R. v. Gibson, 2008 SCC 16 at para. 15. In my view, the purpose of the prerequisites in s. 258(1)(g) are two-fold. First, they ensure that the presumption of accuracy only applies in circumstances where it is justified, that is, where the tests have been conducted by a qualified technician using an approved instrument which is in proper working order. Second, they ensure that the accused is provided with sufficient information to enable him to challenge the results of the breath tests. The accused cannot do so unless he knows the identity of the technician, the type of approved instrument that was used, and the alcohol standard that was used to ensure that it was in good working order.

[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.

(iii) The Certificate in This Case

[17]

In this case, the certificate identifies Glen Leonardo as a qualified technician and states that he certifies certain facts. Cst. Misev testified that the certificate was provided to him by Cst. Leonardo, who is a qualified technician, after Cst. Leonardo administered breath tests to Mr. Moonessar. Based on this, I have no doubt that Cst. Leonardo is a qualified technician, that he prepared the certificate and that he adopted its contents. In my view, this is a "certificate of a qualified technician" stating that the prerequisites set out in s. 258(1)(g) have been met.

[18]

Any doubt that may remain with respect to this issue is resolved by the test record. This document is signed, and therefore clearly admissible for its truth pursuant to s. 258(1)(f.1). It states that tests were conducted by Glen Leonardo (whom Cst. Misev testified is a qualified technician), that Mr. Moonessar was the subject of the tests, that the tests were conducted using an Intoxylizer 8000C (which is an approved instrument[1]) and that the tests were conducted at times and with results that correspond to those in the certificate. While the test record does not state that the samples were provided directly into the approved instrument or that the instrument was in good working order and is therefore not a substitute for the certificate, it corroborates the contents of the certificate in most respects. It is well established that deficiencies and errors in a certificate can be remedied by extrinsic evidence: Rebelo at paras. 38-41.

[19]

It was argued that the reason the certificate is unsigned is unknown, so the possibility that Cst. Leonardo did not sign it because he was unwilling to attest to its accuracy cannot be discounted. However, in every case there exists the possibility that the certificate, despite complying with s. 258(1)(g), is inaccurate or unreliable. For example, the technician could be mistaken or deliberately untruthful. That is why the presumption of accuracy is rebuttable: Gibson at para. 48. In any event, in my view it is highly unlikely that Cst. Leonardo would have refused to sign the certificate because it was inaccurate but would nonetheless have provided it to Cst. Misev to serve on Mr. Moonessar. In all likelihood, the lack of a signature is due to an oversight on the part of Cst. Leonardo.

[20]

Based on the foregoing, I am satisfied that the presumption of accuracy is justified in this case. I am also satisfied that the lack of signature did not occasion any prejudice to Mr. Moonessar. He was aware of the identity of the technician, the type of approved instrument that was used, and the alcohol standard that was used to ensure that it was in proper working order. Mr. Moonessar possessed all the information he needed to mount a challenge to the accuracy of the certificate had he wished to do so.

IV. DISPOSITION

[21]

For the foregoing reasons, Mr. Moonessar is found guilty on Count 2. Count 1 is dismissed for the oral reasons given on February 10, 2017.

Justice P.A. Schreck

Released: April 21, 2017.

[1] Can. Reg. SI/85-201, s. 2(p)