DATE: February 3, 2022 INFORMATION NO.: 3111-998-18-14965
ONTARIO COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
v.
HARVINDER MAAN
C O U R T P R O C E E D I N G S
REMOTELY BEFORE THE HONOURABLE JUSTICE P. F. MONAHAN
On FEBRUARY 3, 2022 at BRAMPTON, ONTARIO
APPEARANCES :
R. Raessi Counsel for the Crown A. Little Counsel for Mr. Maan
REASONS FOR JUDGMENT
THURSDAY, FEBRUARY 3, 2022
THE COURT: I am going to give you Judgment on these procedural points and then we will go from there. So, Mr. Reporter, are you there?
COURT REPORTER: Yes, Your Honour.
THE COURT: Ms. Clerk, we have got the reporter and we are on the record?
CLERK OF THE COURT: Yes, we’re on the record, Your Honour.
THE COURT: And just for introductions, because this is an ongoing case. You have got Mr. Raeesi for the Provincial Crown. You have got Mr. Little, initial A., for the defendant Mr. Maan. Mr. Little, today, appears as agent. Mr. Maan is not going to be appearing and it is going to go over to March the 3rd, but I will deal with that after.
I am going to give Judgment on an interim ruling issue. So, Mr. Reporter, I need an introduction heading in my reasons.
REASONS FOR JUDGMENT
MONAHAN, J. – (ORALLY):
INTRODUCTION
This is a mid-trial ruling on the admissibility into evidence of 1) a certificate of Analyst and 2) a print out associated with an approved instrument under s. 320.33 of the Criminal Code.
Mr. Maan is charged with impaired operation and over 80, contrary to s. 253(1)(a) and 253(1)(b) respectively of the Criminal Code. The allegations relate to alleged offences said to have happened on December the 2nd, 2018, prior to the amendments to the Criminal Code, concerning drinking and driving offences. The procedural aspects of those amendments do apply retroactively, as I understand it.
ISSUE 1 – THE CERTIFICATE OF ANALYST
The Crown is in the process of calling its case. The breath technician, Officer Feasby, has given viva voce evidence concerning a Certificate of Analyst that he had in his possession, which he understood to mean that the alcohol standard he used with the Intoxilyzer was certified by an analyst and that the system calibration check was within ten percent of the target value of an alcohol standard that was certified by an analyst.
When the Crown sought to have the Certificate of Analyst marked as a numbered exhibit, defence counsel objected, saying that s. 320.32 governed, in that defence had not received notice from the Crown prior to trial of the Crown’s intention to introduce the certificate, as required by s. 320.32(2).
The Crown acknowledged that it had not, prior to trial, given notice of its intention to produce the Certificate of Analyst. However, the Crown argued that the Certificate was admissible and could be marked pursuant to the “common law”.
Section 320.32(1) and (2) read as follows:
(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.
(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.”
Section 320.32 provides a short cut for the Crown to prove certain certificates, including a Certificate of Analyst, without calling a witness. For example, a certificate of a qualified technician or a certificate of an analyst can be received into evidence without calling a witness provided certain notice provisions are met.
I have reviewed and considered the Queen v. Bahman, 2020 ONSC 638, the Queen v. Porchetta, 2021 ONSC 1084 and the Queen v. Dulal, 2021 ONSC 2798 and the Queen v. Singh, 2021 ONCJ 539. These cases make it clear that the Crown has two options when seeking to prove the content of a Certificate of Analyst; it can be done by introducing the certificate without a witness, pursuant to s. 320.32, provided the notice provisions are met, or through the viva voce evidence of the breath technician. I am aware that the Queen v. Goldson, 2021 ABCA 193, takes a different view on this issue.
In this case, the Crown acknowledges that it has not given notice under s. 320.32 for the Certificate of Analyst. Sub-section 320.32(2) provides that, “no certificate shall be received in evidence” unless notice is given. I have considered whether the evidence of Officer Feasby, saying that he had the Certificate of Analyst in his possession and other evidence on this subject would permit the exhibit to be marked as a numbered exhibit.
While the Ontario cases mentioned above, in particular, Porchetta and Bahman, permit viva voce evidence concerning the certificate, they do not appear to go as far as to permit the actual marking of a certificate as an exhibit. Section 320.32(2) specifically prohibits the “certificate” from being received in evidence, without notice.
Accordingly, in my view, and while the matter is not free from doubt, the Certificate of Analyst cannot be marked as an exhibit in these circumstances. However, the Crown is not prevented from calling viva voce evidence referring to the content of the certificate as the Ontario cases cited above make clear. Other admissible documents may also touch on this issue.
ISSUE II – PRINT OUT FROM APPROVED INSTRUMENT
Section 320.33 provides as follows:
“A document that is 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 an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.”
The defence argues that the “print out” referred to in s. 320.33 may only be introduced into evidence if it is printed from the Intoxilyzer’s internal printer, rather than an external printer attached to the Intoxilyzer or the approved instrument. The print out, in this case, was printed from an external printer, apparently.
In my view, a document that is “printed out from an approved instrument” may be printed by the internal printer from the instrument or an external printer, as long as the qualified technician certifies that the document printed out from the approved instrument is produced by the approved instrument.
I agree with defence counsel that “from an approved instrument” is different than “produced by the approved instrument”. However, there is no inconsistency here in my view. The reference to “produced by the approved instrument” relates to the data coming from or generated by the approved instrument, which is reflected in the print out. I note that this does not prohibit the inputting of data into the approved instrument by the qualified technician before its use.
The qualified technician certifies that the document printed out has been produced by the approved instrument. An external or internal printer may be used, in my view.
Accordingly, in my view, the document printed from the external printer and marked as a lettered exhibit may be given a numbered exhibit in this trial.
Those are my reasons on the two procedural points raised.
MR. LITTLE: Thank you, Your Honour.
THE COURT: Okay. Ms. Clerk, I do not know if we have exhibits there or not. I know you have the Information. There were some exhibits.
CLERK OF THE COURT: Yes, I do see that, Your Honour.
THE COURT: Okay. So, I just want the lettered exhibits. There are two lettered exhibits A and B, I am not sure which one is which.
CLERK OF THE COURT: Yes. I have Test Record Document, first page, as Letter A and then, Certificate of Analyst Letter B.
THE COURT: It is Letter B. Right. And then, on terms of numbered exhibits, what do you have, one and two, or something like that?
CLERK OF THE COURT: Yes.
THE COURT: Okay. So, I was going to suggest counsel that the one that was Exhibit A, which is the print out, would be now marked as Exhibit 3 and then, we would leave the Certificate of Analyst as Exhibit B. Mr. Little? Mr. Little, make sense.
MR. LITTLE: It does, Your Honour. Thank you.
THE COURT: Okay. So, Ms. Clerk, it is a bit confusing. You have two lettered exhibits, A and B. B stays as it is; just leave it that is the Certificate, that is fine.
CLERK OF THE COURT: Okay.
THE COURT: A – how did you describe it, you called it a print out?
CLERK OF THE COURT: Letter A was called Test Record Document, first page.
THE COURT: Okay. So, now Letter A is going to become Exhibit 3.
CLERK OF THE COURT: Okay.
THE COURT: So, can you do that?
CLERK OF THE COURT: Yes, I can. Thank you, Your Honour.
EXHIBIT NUMBER 3 – Test record document, first page - Produced and marked.
THE COURT: Okay. And then, this is a trial continuation and the Trial Coordinator knows about it and everything. And the date we previously agreed on was March the 3rd, in courtroom 108, at 10:30. We are having a 10:30 start. Mr. Little has another matter at 9:30 somewhere. So, Ms. Clerk, can we now remand this case – Mr. Little, today appears as agent – I do not know, maybe he has got a designation, I do not know. Do you think you do, Mr. Little?
MR. LITTLE: I do, Your Honour. But, in any event, the Crown’s also elected summarily.
THE COURT: Sure. So, he appears as agent or if he has got a designation, he appears pursuant to the designation, it does not really matter.
CLERK OF THE COURT: Perfect. Thank you, Your Honour.
THE COURT: And then, the date we have agreed on is March 3rd of this year, obviously, next month, courtroom 108. It is going to be by Zoom that day and it is going to be at 10:30. So, it is a bit different then we are used to; it is a 10:30 start.
CLERK OF THE COURT: I’ve indicated that, Your Honour. Thank you so much.
THE COURT: Okay. Great. Okay. So, I think that is it for today, subject to anything that Mr. Raeesi or Mr. Little have to say.
MR. LITTLE: Nothing from the defence, Your Honour.
THE COURT: Okay. Mr. Raeesi?
MR. RAEESI: Nothing for the Crown. Thank you very much.
THE COURT: Okay. Thanks to both of you.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, _ JANICE LAW _ certify that this document is a true and (Please print name of authorized person(s)) accurate transcript of the recording made by Mark Bryce & Sonia Verma of _______ R. v. Maan in the Ontario Court of Justice held at (Case name) (Name of Court)
7755 Hurontario Street, Brampton, Ontario taken from Recording No. (Court address) 3111_107_20220203_083141__30_MONAHAPA.dcr, which has been certified in Form 1.
February 25, 2022__ (Date) (Signature of authorized person(s))