ONTARIO COURT OF JUSTICE DATE: 2021 02 25 COURT FILE No.: 19-27826
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BURIM ZEJNULLAHU
Before Justice K.A. Fillier
Heard on October 5 th & 6 th , 2020, January 27, 2021 Reasons for Judgment released on February 25, 2021
Ms. Bellehumeur,............................................................................... counsel for the Crown Mr. Little....................................................... counsel for the Defendant Burim Zejnullahu
Fillier J.:
[1] Mr. Zejnullahu faces one count of driving with excess blood alcohol contrary to section 230.14(1)(b) of the Criminal Code. The trial proceeded in a blended fashion with the defence raising a number of Charter issues. No defence evidence was called.
[2] At the conclusion of the trial, the parties addressed me on one discrete issue – namely, the admissibility of the Certificate of a Qualified Breath Technician (the “Certificate”). It was agreed that I should rule on this issue first, since a finding that the Certificate is inadmissible would render all other arguments moot. The Certificate is the only evidence of the Defendant’s blood alcohol concentration at the time of driving and its exclusion would mandate an acquittal.
Factual Overview
[3] On February 24, 2019, Mr. Zejnullahu was stopped by police while operating a motor vehicle. He subsequently provided a sample of his breath into an ASD which registered a “Fail.” Thereafter he was arrested for the offence of “over 80” and read a breathalyzer demand pursuant to section 320.28(1) (a)(i) of the Criminal Code. Back at the police station he provided two samples of his breath and at 1:15 a.m. and 1:36 a.m. which registered respective truncated readings of 190 and 180 mgs of alcohol in 100 ml of blood.
[4] Police Constable Stephen Seed was called by the Crown on the third day of trial for the purpose of tendering the Certificate. In his evidence in chief, PC Seed testified that he had served the Certificate on the Defendant at 1:49 a.m. while he was in a cell, and that the Defendant had refused to sign acknowledging service. Under cross examination, PC Seed said that he had no independent recollection of the Defendant ever actually being in possession of the Certificate.
[5] Mr. Little raised an objection to the admissibility of the Certificate at the point in time Crown counsel sought to have it marked as an exhibit on the trial. After some discussion, it eventually became clear that Mr. Little was disputing that the Certificate had been served and notice given in accordance with s. 320.32.
[6] In addition to the testimony of PC Seed (which I will discuss further), there is one additional piece of evidence for my consideration on the issue of service of the Certificate. On September 21, 2020, at 8:12 a.m. an email was sent to Mr. Little as counsel for the Defendant attaching the Certificate and advising of the Crown’s intention to rely on the Certificate at the trial scheduled for October 5 th & 6 th , 2020.
Positions of the Parties
[7] Both Crown and defence agree that compliance with Section 320.32 is a prerequisite to the admissibility of the Certificate. On behalf of the Defendant, Mr. Little argues that the Crown has not established, on a balance of probabilities, that Mr. Zejnullahu was actually provided with a copy of the Certificate by PC Seed as required by 320.32(2). Furthermore, he argues that the notice provided via the September 21, 2020 email is insufficient as the combination of 320.32(4) and 320.32(5) mandate that both notice and service must be affected a minimum of 61 days prior to the date of trial.
[8] On behalf of the Crown, Ms. Bellehumeur, submits that the evidence of PC Seed, taken as a whole, demonstrates that Mr. Zejnullahu was indeed served with the Certificate. She argues that PC Seed’s testimony that it is his standard practice to provide a copy to an accused person should lead to an inference that he did in fact do so on this occasion. As to the required time period for notice under s. 320.32, Ms. Bellehumeur, submits that the notice need only be “reasonable” and not 61 days as advocated by the defence. Finally, the Crown argues that even if I am not satisfied that PC Seed served Mr. Zejnullahu with the Certificate, the email sent to Mr. Little amounts to both reasonable and adequate notice in accordance with 320.32.
Issues to be Determined
[9] The following issues arise in determining the admissibility of the Certificate:
(i) Am I satisfied on a balance of probabilities that PC Seed provided the Defendant with a copy of the Certificate prior to his release from custody?
(ii) If the answer to (i) is “No,” is the September 21, 2020, email sufficient notice for the purposes of s. 320.32?
Findings and Analysis
Has the Crown established on a balance of probabilities that the Defendant was served with the Certificate prior to his release from custody?
[10] As noted by the Supreme Court of Canada in R. v. Noble, [1978] 1 S.C.R. 632, provisions such as 320.32:
…are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the Certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.
[11] Where the Crown seeks to rely on the evidentiary shortcut for tendering breath readings, it must be established to the requisite standard that an accused has not only received notice, but also an actual copy of the Certificate. In situations where police serve an accused with the Certificate prior to release from the station, what transpires with the document after he or she leaves does not render service invalid. In R. v. Redford, 2014 ABCA 336, the Alberta Court of Appeal stated, “The law does not require the respondent to retain personal control or possession of the Certificate. What is important, functionally, is that before trial, the respondent receives a copy of the Certificate and reasonable notice that it will be tendered as evidence by the Crown.” [emphasis added]
[12] PC Seed played a fairly minor role in the investigation of the Defendant. He brought an ASD to the scene where Mr. Zejnullahu was being investigated; he supervised a junior officer who administered the ASD; and, he facilitated access to counsel back at the station. Finally, according to his evidence in chief he “went down to the cells and served the accused with his documents in regards to notice of intent and things like that, which he refused to sign.” The following exchange regarding the Certificate also unfolded with Crown counsel:
Q: Okay. But did you provide it – was it in his possession?
A: Yes.
[13] Despite the unequivocal nature of his evidence in chief, cross-examination revealed that PC Seed had no independent recollection of ever giving the Defendant a copy of the Certificate.
[14] It is not in dispute that PC Seed has a line in his notes saying “served male with documents in cells.” As his cross-examination progressed, it became clear that Officer Seed equates “service” of the Certificate with explaining the Certificate to an accused. The following exchanges during both cross-examination and re-examination by Crown counsel are particularly illustrative:
Q: Okay. So I just want to be clear. The idea of service does not go hand in hand with confirmation from you, that my client ever actually possessed the document, right?
A: Yeah
Q: Okay. And to be very clear, you have no independent recollection of him ever touching the document, right?
A: No.
(Cross examination by Mr. Little)
Q: Okay. And so it was raised in cross-examination that what you have in your notes is that you served the document. What does that mean to you?
A: To me, serving the document means explaining it to the person and giving them the opportunity to read it and sign it and acknowledge that that document is going to be brought forward.
Q: Okay. And sorry. Can you just – I – I just missed the beginning.
A: It includes reading the document to them, explaining it to them and giving them an opportunity to read it and sign it.
(Re-examination by Ms. Bellehumeur)
[15] I accept that PC Seed explained the Certificate to Mr. Zejnullahu who then refused to sign the document. I am not satisfied, however, on a balance of probabilities that he was ever provided with a copy. Officer Seed was candid in his evidence in stating that he could not say whatsoever whether or not he had provided Mr. Zejnullahu with the Certificate. He could not even confirm whether a copy of the Certificate for the Defendant had even been generated given his lack of familiarity with the new form.
[16] To be clear, given his evidence, I am also not confident that PC Seed has a “standard procedure” of providing such Certificates to accused persons prior to their release from custody. I adopt the reasoning of Justice W.H. Goodridge in R. v. Fitzpatrick wherein he stated at paragraph 19 that “a police officer’s testimony that he or she assumed compliance based on the usual practice would rarely be enough to meet the burden of proof for this important statutory precondition.” It may be that in different circumstances, testimony regarding a standard practice could be persuasive in establishing the inference sought. This however is not one of those cases.
[17] I note that all of the uncertainty surrounding service of the Certificate would have been avoided if service had been done while the Defendant was on video in the breath room. Unfortunately, it was not.
Is the September 21, 2020, email sufficient notice for the purposes of s.320.32?
[18] As previously stated, s. 320.32 provides the prosecution with an evidentiary shortcut for proving a defendant’s blood alcohol concentration. Where the statutory preconditions have been met, the Certificate is admissible for the truth of its contents without testimony from the Qualified Breath Technician (“QBT”). In the event that the defence wishes to cross-examine the QBT who signed the Certificate, the section sets out mandatory timelines for both the filing and the hearing of the application for leave to cross-examine the QBT.
[19] I agree with the defence that on a plain reading of the section consistent with the principles of statutory interpretation the Crown must perfect notice and service on the defence a minimum of 61 days in advance of trial. While subsection (2) speaks to “reasonable notice,” subsections (4) and (5) establish fixed minimum time frames that the defence must adhere to. As such, “reasonable notice” must be interpreted as encompassing the 60-day time frame – to do otherwise would render subsections (4) and (5) meaningless.
[20] In the end result, I have no choice but to find that the Crown has not complied with notice provisions in this case. Counsel for Mr. Zejnullahu received both notice and service of the Certificate on September 21, 2020, only 14 days prior to the start of trial on October 5 th , 2020. I am also unable to accept the Crown’s argument that I can infer the Certificate was provided in disclosure well in advance of the 61-day time frame. There is simply a complete absence of evidence before me as to what was provided in disclosure to the Defendant or his counsel. The fact that the September 21, 2020 email was sent to counsel to a certain extent undermines the Crown’s position that it had already been disclosed earlier.
[21] The Certificate is ruled inadmissible at trial. There being no evidence of Mr. Zejnullahu’s blood alcohol concentration, he is found not guilty.
Released: February 25, 2021 Signed: Justice K.A. Fillier
[1] In oral argument Mr. Little advocated for the requisite standard of proof of service to be one of proof beyond a reasonable doubt. Given my decision, I find it unnecessary to consider this issue at length. However, I am of the view the pursuant to the Ontario Court of Appeal’s decision of R. v. MacKinnon, [2003] O.J. No. 3896, the standard to be applied is one of a balance of probabilities.