Court File and Parties

Court: Ontario Court of Justice

Date: November 9, 2020

Court File No.: Brampton 19-16775

Between:

Her Majesty the Queen

— AND —

Harjeet Kaur

Before: Justice P.T. O'Marra

Heard on: October 7 and 15, 2020

Reasons for Judgment on the Admissibility of the Certificate of the Qualified Technician released on: November 9, 2020

Counsel

P. Grbac — counsel for the Crown

A. Little and A. McQuaig — counsel for the defendant Harjeet Kaur

Introduction

[1] The accused, Ms. Kaur is charged that on July 5th, 2019 in the City of Brampton, within two hours after ceasing operation of her motor vehicle, her blood alcohol concentration was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code of Canada (the "Code").

[2] This is my oral ruling on a discrete issue that was raised by the defence at the close of the crown's case. The issue is whether the crown has met the statutory pre-conditions for the admissibility of the Certificate of a Qualified Technician (the "Certificate"), pursuant to section 320.32(2) of the Code. In other words, did the crown lead sufficient evidence to establish on a balance of probabilities that Ms. Kaur was provided with reasonable notice and served with the Certificate. If I rule that the certificate is inadmissible, should the crown be permitted to re-open its case and call the Qualified Technician?

[3] On October 7, 2020, the trial proceeded in a blended voir dire due to the Charter Application that was filed. After the crown closed its case, counsel elected to not call any evidence on the trial proper but intended to call evidence on the voir dire. However, counsel indicated that he wished to raise an argument that may obviate the need to schedule another day. Counsel stated that he wished to argue that the Certificate was inadmissible. Counsel made brief submissions and asked the Court to consider the Summary Conviction appeal decisions of Miller J. in R. v. El Boury (2016 ONSC 4900) and Durno J. in R. v. Kelly and Cardenas-Becerill (an unreported decision dated April 4, 2020). Due to the lateness in the day, the matter was adjourned to October 15, 2020, for the crown to make submissions using the Zoom platform. The matter was put over to today for my judgment on the issue.

[4] Originally, this two-day matter was scheduled for October 7th and 8th, 2020, which included the Charter application that alleged a number of breaches. Subsequent to the trial date being set, counsel served and filed notices of a constitutional challenge to sections 320.14(1)(b) and 320.31(1) of the Code, respectively. In advance of the arraignment, counsel in his usual candour, stated that inadvertently he was double booked for the second day of trial and sought an adjournment of that day. The crown was unopposed. As I stated previously, the matter proceeded in a blended voir dire, with the constitutional questions left to the end of the trial for further evidence and argument.

[5] The crown called one civilian witness and two police officers. The crown did not call the Qualified Technician but rather relied on the Certificate as evidence of fact that at the time of operation of her motor vehicle, Ms. Kaur's blood alcohol concentration exceeded the legal limit. Specifically, Ms. Kaur's two breath tests belied readings of 170 mg of alcohol and 170 mg of alcohol in 100 millilitres of blood, respectively at 4:43 am and 5:07 am.

Positions of the Parties

[6] The crown argued there was evidence on a balance of probabilities, that established that Ms. Kaur was served with the notice and the Certificate in accordance with section 320.32 of the Code. Moreover, the crown contended that counsel was precluded from arguing against the admissibility of the Certificate when he failed to object to the Certificate being made an exhibit. Put another way, the crown asserted that admissible evidence introduced at trial cannot be rendered inadmissible later in the trial. (See: R. v. Gundy, 2008 ONCA 284). Alternatively, if the Court, which is not functus, determined that the Certificate was inadmissible, the crown should be permitted to re-open its case and call the Qualified Technician on the voir dire/trial.

[7] Counsel maintained that the crown failed to prove on a balance of probabilities on the record that was before the Court, that Ms. Kaur was properly served with the Notice and the Certificate. Counsel argued that there was no Gundy error. The crown was put on notice that there was an issue regarding admissibility when the crown asked that the Certificate be entered as an exhibit. Furthermore, counsel argued that the crown should have understood there was an issue regarding service of the Certificate by the line of cross-examination of Constable Breitenback and neglected to re-examine the constable on the issue of service. Although, counsel did not resile from his original position that if the Certificate was ruled inadmissible Ms. Kaur was entitled to an acquittal, he astutely recognized the court's obligation and duty to trial fairness and put forward the following middle ground: permit the crown to call only the Qualified Technician on the voir dire, and deal with the substantive Charter issues.

[8] It is my view that the crown did not prove on a balance of probabilities that the Certificate was properly served on Ms. Kaur and therefore, not provided notice pursuant to section 320.32 of the Code. However, I am inclined to exercise my discretion and permit the crown to lead evidence of the Qualified Technician. These are my reasons for doing so.

The Evidence and Submissions Regarding the Certificate

[9] Constable Breitenback was the arresting officer and he transported Ms. Kaur to 21 Division. At 4:28 am, he turned over Ms. Kaur to the Qualified Technician. Constable Breitenback was uncertain regarding the time that Ms. Kaur was returned to him for processing. However, the second sample was taken at 5:07 am. At 5:20 am, Ms. Kaur was placed in a holding cell.

[10] Constable Breitenback testified that he received three copies of the Certificate from the Qualified Technician. He compared all three and was satisfied that they were the same. He testified that he kept one copy for himself, one for divisional records and one for Ms. Kaur. In direct examination, he stated that he "served" Ms. Kaur with the Certificate. But he was never really asked to describe how he served Ms. Kaur, beyond telling the court that it was his usual practice to leave a copy of the Certificate at the front desk after Ms. Kaur was placed in a holding cell. Police policy prohibited a detainee to have any paper in the cell. He was unable to remember if he brought Ms. Kaur to a cell or he just left her with a booking officer. Constable Breitenback said nothing about the contents of Ms. Kaur's personal property. It seemed implicit from his testimony, that Constable Breitenback believed or assumed that the Certificate was given to Ms. Kaur when she left the Division. Nevertheless, Constable Breitenback testified that he was uncertain what happened to the Certificate.

[11] With respect to the introduction of the Certificate through Constable Breitenback, the crown asked if the Certificate could be marked as Exhibit #1. The Court asked counsel "was that subject to cross examination and argument?" Counsel responded, "yes, argument (inaudible) and the Charter and Statutory arguments…"

The Legislation

[12] The amendments to the Code in December 2018 dealing with the notice requirement of the Certificate replaced the former section 258(7) with section 320.32 of the Code.

[13] Section 320.32 of the Code states as follows:

320.32 (1) A Certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the Certificate without proof of the signature or the official character of the person who signed the Certificate.

Notice of intention to produce Certificate

(2) No Certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the Certificate. [Emphasis added.]

Attendance and cross-examination

(3) A party against whom the Certificate is produced may apply to the court for an order requiring the attendance of the person who signed the Certificate for the purposes of cross-examination.

Form and content of application

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the Certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Issue #1: Should Admissible Evidence at Trial Such as the Certificate Be Rendered Inadmissible at the Close of the Crown's Case?

[14] The crown submitted that once the Certificate was marked as Exhibit #1 in the trial that it was admissible evidence, and counsel had an obligation to object to the Certificate's admissibility. The crown relied on the principle that once evidence is admissible that it cannot be retroactively declared inadmissible later on. The crown cited the decision in Gundy, supra. Rosenberg J.A., for the court held, at paras. 19-23:

19 Defence counsel took no objection to the admissibility of the results of the Intoxilizer tests either when the certificate was tendered during the evidence of Constable Twilley or during the testimony of the Intoxilizer operator, Constable Cormier. He also did not object to Constable Cormier's testimony about the results of the tests or the admissibility of the Subject Test Reports that also showed the results of the Intoxilizer tests. Further, no objection was taken to the admissibility of any of this evidence at the close of the crown's case. Finally, the Defence expert referred to this evidence during his testimony. The first inkling that there was any concern about the admissibility of this part of the crown's case came a month later during submissions. In my view, the objections came too late.

20 Over fifteen years ago, this court explained in clear terms that objection to the admissibility of evidence should be taken at the time the evidence is tendered. Finlayson J.A. said this in R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 294-95:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the crown could routinely be initiated after the case for the crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence: R. v. Myers (1984), 14 C.C.C. (3d) 82 at p. 91, Tse, "Charter Remedies: Procedural Issues" (1989), 69 C.R. (3d) 129 at pp. 136-40.

Litigants, including the crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative. [Emphasis added.]

21 More recently, also in the context of a drinking and driving case, the Saskatchewan Court of Appeal held that an objection to the admissibility of breath sample evidence must be taken when the evidence is tendered. Sherstobitoff J.A. said this in R. v. Enden (2007), 52 M.V.R. (5th) 92 at para. 20:

It is trite law that an objection to the admissibility of evidence must be made when the evidence is tendered. See R. v. Pelletier (1995), 97 C.C.C. (3d) 139 and R. v. Kutynec (1992), 70 C.C.C. (3d) 289. To allow the delay [in the taking of breath samples] argument at the final argument stage of the trial would deprive the crown of the opportunity to lead evidence relevant to the issue. It is further noted in this respect that the respondent did not cross-examine the Crown witnesses respecting delay, and did not take up the crown on its offer to put the officer who accompanied the arresting officer on the stand for cross-examination. [Emphasis added.]

22 In Kutynec at pp. 296-97, Finlayson J.A. went on to explain that a judge has a discretion to allow counsel to challenge evidence already received and "will do so where the interests of justice so warrant". An example where the judge would exercise that discretion is if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken. However, that was not this case. Nothing happened after Constable Twilley identified the technician's certificate and it became an exhibit to cast doubt on the admissibility of the Intoxilizer results. To the contrary, the case for admissibility of the evidence grew stronger during Constable Cormier's evidence when she referred to the grounds upon which Constable Twilley made the demand and then Exhibits 2C and 2D were admitted without objection.

23 In my view, the trial judge erred in permitting the Defence to challenge the admissibility of the certificate and the results of the Intoxilizer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, crown counsel would have had the option of calling additional evidence. A month later, the case was closed and presumably the witnesses were gone. As it turned out, the trial judge dismissed the objection, but the crown could have been unfairly prejudiced because of the Defence's failure to make a timely objection. These observations do not relate solely to the Charter issue but apply to all of the other objections to the admissibility of the Intoxilizer results that were taken by counsel for the first time at the end of the case.

[15] In the Gundy case, which is different from the case at bar, counsel said nothing when the Certificate was introduced and made an exhibit.

[16] In the case at bar, the crown asserted that counsel made only a "generalized objection" and was neither specific about the notice nor the service. I am not prepared to characterize counsel's objection in those terms. Far from it. In my view, counsel made it clear, granted after the Court initiated the discussion, that he maybe taking issue with the admissibility of the Certificate subject to "cross examination and argument". I do not agree with the supposition that counsel during this point in a trial must then stand up and state, with exacting specificity the concerns counsel may have with the admissibility of the Certificate. The cross examination may, in fact, draw out the evidentiary concerns regarding the admissibility of the document. After cross examination, the crown has the right of re-examination and to call further evidence in order to remedy any weaknesses. In my view, based on counsel's cross examination, as Justice Durno stated at para. 40 in Kelly and Cardenas-Becerill, the issue was "clearly on the table" well before the close of the crown's case. In submissions, the crown indicated that the Qualified Technician was available for the second day to testify, if necessary. I am uncertain if that submission was in reference to the trial proper or the voir dire. In any event, the crown should not be disadvantaged due to counsel's scheduling conflict. On the other hand, the crown chose to proceed by way of the Certificate and clearly closed its case at the end of the first day.

[17] The same argument that the crown advances in the case at bar was made in the Kelly and Cardenas-Becerill cases regarding the failure to make a timely objection when the Certificates were marked as exhibits and entered as evidence.

[18] In the Kelly case, trial counsel indicated to the court that there could be arguments regarding admissibility later in the trial and the crown was content to proceed on that basis.

[19] In the Cardenas-Becerill case, trial counsel indicated that there could be arguments regarding the admissibility of the Certificate at a later unspecified time in the trial. The crown was content to proceed on that basis. Further, before the crown closed his case, counsel advised that he was going to be challenging the admissibility of the Certificate based on service. The crown was content to proceed on that basis and closed its case.

[20] In Cardenas-Becerill, Durno J., was not persuaded that counsel's conduct was inconsistent with the directions from the Court of Appeal in Gundy.

[21] However, the facts in the Kelly case were different in that counsel said nothing about the service issue after the investigating officer's evidence was completed. The crown asked its last question in re-examination of the arresting officer and immediately said that was the evidence for the crown. It was not until after the crown had closed his case that there was any reference to service. Then counsel said that he would make all his arguments at one time. It was during those submissions that counsel argued there was no proper service of the Certificate.

[22] In the circumstances of both cases, Durno J. was not persuaded that there was a Gundy error.

[23] Although Gundy precludes counsel from raising an issue regarding admissibility after the crown closes its case if there is no comment made about the Certificate, it does not mean that the "ball goes into the defence's court" when the red flag is raised, or the cross examination is focused on service. It is up to the crown to ensure there are no issues remaining before closing its case. (See: Kelly and Cardenas-Becerill, para. 46)

[24] The crown has an evidentiary luxury or a short cut to circumscribe hearsay evidence by relying on the Certificate to prove an essential element of the offence that involves driving after consuming excess alcohol. In these desperate times to use court resources properly and economically, the crown should be encouraged to proceed only on the Certificate in order to prove the breath readings in an excess blood alcohol case. However, as Durno J. stated at para. 48, when the crown chooses to proceed with this evidentiary short cut, "the onus should be on the crown to make sure the admissibility door is firmly shut or open before closing its case. The onus should not be on defence counsel, provided they have raised the caution flag before the crown closed its case."

[25] I bear some responsibility procedurally for permitting the Certificate to be marked as a trial/voir dire numbered exhibit. This may have added to the confusion. The better practice, as suggested by Durno J., is that the Certificates should be "marked for identification," either as a lettered exhibit or some other designation so that it is clear to everyone that it is not a part of the trial evidence upon which the trial judge can rely. That would make it clear that there is an outstanding issue. (See: Kelly and Cardenas-Becerill, at para. 51.)

[26] I see no qualitative difference in the argument that was raised and rejected in the Kelly and Cardenas-Becerill Summary Conviction appeals than was raised in this case. Counsel did put the crown on notice that the admissibility of the Certificate was subject to cross examination and argument. Furthermore, one of the many areas of counsel's cross-examination was unmistakably focused on service. In my view, the cautionary flag was raised, and it was for the crown to either re-examine Constable Breitenback in that area and or call further evidence regarding the service of the Certificate and notice. Therefore, in my view, no Gundy error was committed.

Issue #2: Was Ms. Kaur Properly Served with Notice of the Certificate?

[27] In light of Constable Breitenback's evidence, I find that he did not serve Ms. Kaur. To simply say that "she was served" without any specific details in the manner in which service was perfected was not enough. On the face of the Certificate at the bottom which states "Notice in accordance with s. 320.32(2) of the Criminal Code of Canada" nothing has been filled in by any police officer and there is no signature from Ms. Kaur. Nor am I prepared to infer that the Certificate was given to Ms. Kaur upon her release on a balance of probabilities. He gave no evidence specifically regarding Ms. Kaur's property. His evidence with regards to his usual practice of leaving the Certificate at the front desk after a detainee is lodged in the cells was unhelpful to the Court. Constable Breitenback candidly acknowledged that he had no idea what happened to the Certificate.

[28] The crown submitted that counsel would have received the notice in the crown disclosure. The crown stated that had he known this was an issue he would have called disclosure clerks on the contents of the crown disclosure that was provided to counsel's office. As I have already stated, the crown had that opportunity to remedy any deficiencies in the service of the notice before the close of its case. I am not willing to infer that the crown complied with the section 320.32(2) notice requirement by way of disclosure on a balance of probabilities in this case. (See: R. v. Singh, [2016] O.J. No. 94 and R. v. Wong, [2012] O.J. No. 4017 reached similar conclusions).

[29] Of course, reasonable notice is a concept and not a document. (See: R. v. Oslowski, 2006 ONCJ 488, [2006] O.J. No. 5036) However, the new legislative amendments have not changed, and the accused is still required to be given a copy of the Certificate. (See: Singh, para. 20).

[30] For these reasons, the Certificate is inadmissible. However, that does not end the matter.

Issue #3: Should the Crown Be Permitted to Re-open Its Case?

[31] Since I have ruled that the Certificate is inadmissible, the crown makes an application to re-open its case in order to call further evidence regarding the breath samples. Counsel objected to the application on the basis of a lack of written notice and grounds. This was not done in this case. However, as I stated earlier to counsel, the time frame between the end of the first day of trial and the date of submissions on the admissibility of the Certificate was eight (8) days. Courts must be flexible in their adherence to the rules of criminal procedure and a trial judge must consider all the circumstances even where an accused seeks to bring a Charter application in the middle of the trial. (See: R. v. Tash, [2008] O.J. No. 200 (SCJ) and R. v. Loveman (1992), 71 C.C.C. (3d) 123 (C.A.))

[32] Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of a Charter application. (See: Tash, supra. Para. 15)

[33] Counsel received two decisions from the crown supporting its position on October 13, the day before the date of submissions. In my view, it was obvious that the crown was seeking to re-open its case. Counsel raised an objection due to the lack of notice. In my view, he was adequately notified and was not put to an unfair disadvantage.

[34] As the trial judge, I am not Functus officio, meaning "having performed his or her office". When applied to a judge, it means that the judge has no further authority or legal competence because the duties of the office have been fully accomplished.

[35] The crown faces a high hurdle when it seeks to re-open its case. In R. v. S.G.G., [1997] 2 SCR 716, the Supreme Court of Canada set out various principles governing an application to re-open the crown's case, indicating that the court's discretion to permit the crown to re-open narrows as the trial proceeds:

[29] The decision of a trial judge to allow the crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference. However, that discretion must be exercised judicially, and in the interests of justice...

[30] The ambit of a trial judge's discretion to allow the crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused's defence as the trial progresses. During the first stage, when the crown has not yet closed its case, the trial judge's discretion is quite broad. At the second stage, which arises when the crown has just closed its case but the defence has not yet elected whether or not to call evidence, the discretion is more limited. Finally, in the third phase ---- where the defence has already begun to answer the crown's case ---- the discretion is extremely narrow, and is "far less likely to be exercised in favour of the crown". The emphasis during the third phase must be on the protection of the accused's interests... In the instant appeal, the crown sought to reopen the case in the third phase of the trial after the case for the defence had closed.

[36] After the crown closed its case, counsel indicated that he was not calling any evidence on the trial proper. He then asked for the case to be summarily dismissed on a directed verdict which he premised on the exclusion of the Certificate as it related to the issue of service.

[37] The crown is seeking to call the Qualified Technician which is non-contentious testimony and which the crown would reasonably have been expected to introduce in order to support its case, if it had not chosen to proceed only on the Certificate. In my view, the crown is not attempting to change its case. The re-opening of the crown's case would not have caused the type of prejudice identified by the Supreme Court of Canada in R. v. M.B.P., [1994] 1 S.C.R. 555 at paras. 19, 26, 42 and 43.

[38] In my opinion, the defence would not be prejudiced if the crown was permitted to re-open its case to call the Qualified Technician. The Charter application which seeks an order to exclude the breath readings due to a number of alleged infringements and the Constitutional Questions are very much unresolved.

[39] Having reviewed the record and considering this matter further, I am ultimately of the view that the crown should be granted leave to reopen at this particular stage of the trial.

Released: November 9, 2020

Justice P.T. O'Marra