R. v. Albright, [1987] 2 S.C.R. 383

Patrick Llyn Albright Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. albright

File No.: 18909.

1987: February 27; 1987: October 15.

Present: Dickson C.J. and Estey, McIntyre, Lamer and Wilson JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Sentence ‑‑ Proof of previous convictions ‑‑ Failure to provide breath samples ‑‑ Crown tendering certified extract of driving record to prove accused previous convictions ‑‑ Whether such certificate admissible ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 7(2) ‑‑ Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 37 ‑‑ Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 75.

Evidence ‑‑ Proof of previous convictions ‑‑ Documentary evidence ‑‑ Sentencing hearing ‑‑ Crown tendering certified extract of driving record to prove accused previous convictions ‑‑ Whether such certificate admissible ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 7(2) ‑‑ Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 37 ‑‑ Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 75.

Evidence ‑‑ Hearsay ‑‑ Sentencing hearing ‑‑ Crown tendering certified extract of driving record to prove accused previous convictions ‑‑ Hearsay evidence admissible at sentencing hearing when credible and trustworthy.

Evidence ‑‑ Provincial laws of evidence ‑‑ Applicability ‑‑ Criminal matters ‑‑ Scope of s. 37 of the Canada Evidence Act ‑‑ Whether s. 37 restricted to the proof of matters within provincial competence.

Constitutional law ‑‑ Charter of Rights ‑‑ Liberty of the person ‑‑ Crown tendering certified extract of driving record to prove accused previous convictions ‑‑ Whether Crown's failure to give sufficient notice that proof will be made by certificate violated s. 7 of the Charter.

The accused was convicted of failing to provide a breath sample contrary to s. 235(2) of the Criminal Code. At the sentencing hearing, the Crown asked the court to impose a greater punishment because of previous convictions and established that notice had been given to the accused prior to his plea in compliance with s. 740 of the Code. The Crown produced a certified extract of the accused's driving record, pursuant to s. 75 of the British Columbia Motor Vehicle Act, as proof of the convictions. The certificate was held admissible by virtue of s. 37 of the Canada Evidence Act, and the accused was sentenced to the minimum term of imprisonment. The accused's appeals to the County Court and the Court of Appeal were dismissed. This appeal is to determine (1) whether the certified extract of the accused's driving record was admissible in evidence as proof of previous convictions, under the common law, or through the combined effect of s. 37 of the Canada Evidence Act and of s. 75 of the British Columbia Motor Vehicle Act; and (2) whether s. 7 of the Charter required that sufficient notice be given to an accused of the Crown's intention to prove the previous convictions by producing a certificate.

Held: The appeal should be dismissed.

The certified extract of the accused's driving record was admissible evidence at the sentencing hearing to prove previous convictions. Sections 500(4) and 594(1)(a) of the Criminal Code, which specifically deal with the proof of previous convictions in proceedings under the Code, do not indicate that proof of previous convictions may only be made as provided therein. In the absence of an express provision setting out the exclusive mode of proof of prior convictions in proceedings under the Criminal Code, the common law rule applies either through s. 7(2) of the Code or simply because Parliament has never replaced it. The certificate was admissible at common law because, irrespective of the hearsay rule, all credible and trustworthy evidence is admissible at a sentencing hearing.

The certificate, however, was inadmissible pursuant to s. 75 of the British Columbia Motor Vehicle Act. Section 37 of the Canada Evidence Act is restricted to the proof of matters within provincial competence. While it is true that a driving record is generally a matter within provincial competence, the particular aspect of the driving record at issue here was prior convictions under the Criminal Code. This was clearly a matter within federal jurisdiction and s. 37 did not incorporate provincial legislation on this subject.

Finally, there was no merit in the accused's Charter argument. The certificate was admissible at common law and the absence, under the common law rule, of a requirement that sufficient notice be given when proof is being made by certificate did not violate the Charter. Although lack of notice could deprive an accused of an opportunity to verify the accuracy of the certificate and of cross‑examining the officer who would otherwise have testified to prove the convictions, such a situation would rarely result in a violation of an accused's right to a fair trial. In these rare cases, the challenge should come through s. 24 of the Charter. In this case, there was no attempt to establish that the lack of notice caused a violation of the accused's right to a fair trial under the Charter. The accused did not even challenge the certificate's accuracy.

Cases Cited

Applied: Marshall v. The Queen, 1960 CanLII 18 (SCC), [1961] S.C.R. 123; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60; R. v. Blackstock (1950), 1950 CanLII 72 (ON CA), 97 C.C.C. 201; referred to: R. v. Porter (1983), 1983 CanLII 234 (BC CA), 5 C.C.C. (3d) 277; R. v. Taylor, 1963 CanLII 694 (BC CA), [1964] 1 C.C.C. 207; R. v. Reid, 1970 CanLII 1040 (BC CA), [1970] 5 C.C.C. 368; R. v. Duncan (1984), 12 W.C.B. 100; R. v. Wilkinson (1978), 1978 CanLII 2559 (BC SC), 5 C.C.C. (3d) 278 (B.C. Co. Ct.), aff'd (1978), 1978 CanLII 2558 (BC CA), 5 C.C.C. (3d) 284 (C.A.); R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Richardson (1980), 1980 ABCA 368, 57 C.C.C. (2d) 403.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 37.

Canadian Charter of Rights and Freedoms, ss. 7, 24.

Constitution Act, 1867, s. 91(27).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 7(2), 235(2) [rep. & subs. 1974‑75‑76, c. 93, s. 16], 500(4), 594(1)(a), 740.

Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 75 [rep. & subs. 1982, c. 36, s. 16].

Authors Cited

Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.

Fortin, Jacques. Preuve pénale. Montréal: Thémis, 1984.

Lagarde, Irénée. Précis de la loi et des règles de la preuve en matière criminelle, 1954.

APPEAL from a judgment of the British Columbia Court of Appeal rendered July 24, 1984, affirming a judgment of the County Court, dismissing the accused's appeal from his conviction for failing to provide a breath sample. Appeal dismissed.

Vincent Michaels, for the appellant.

W. G. Burke‑Robertson, Q.C., for the respondent.

The judgment of the Court was delivered by

1. Lamer J.‑‑

Facts

2. The appellant was convicted in 1985 of failing to provide a breath sample, contrary to s. 235(2) of the Criminal Code. For a second or subsequent offence, the accused is, under s. 235(2), liable to a greater punishment. At the sentencing hearing, the Crown asked that the court impose a greater punishment because of previous convictions and established that notice had been given to the accused prior to his plea in compliance with s. 740 of the Criminal Code which requires that in order to impose a greater punishment the court must be satisfied that the defendant, before making his plea, was notified that, upon conviction, a greater punishment would be sought.

3. As actual proof of the convictions, the Crown simply produced a document entitled "Certified Extract of British Columbia Driving Record" pursuant to s. 75 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288 (as amended by S.B.C. 1982, c. 36, s. 16). The document listed previous convictions. The accused objected to the production of the document on three grounds:

a) that said Notice of Greater Punishment lacked sufficient particularity;

b) that he was not sufficiently identified in the "Certified Extract of British Columbia Driving Record";

c) that the "Certified Extract of British Columbia Driving Record" was not admissible at common law as retained by s. 7(2) of the Criminal Code despite s. 75 of the Motor Vehicle Act of B.C. and s. 37 of the Canada Evidence Act, R.S.C. 1970, c. E‑10, as amended, which purport to allow for its admissibility.

4. In this Court the appellant has not pursued the first two grounds, but has argued, in addition to his third ground, that he was entitled, under s. 7 of the Canadian Charter of Rights and Freedoms, to notice of the Crown's intention to proceed to proof of his previous convictions through the production of a certificate.

Legislation

Canadian Charter of Rights and Freedoms

Section 7

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Criminal Code

Section 7(2)

(2) The criminal law of England that was in force in a province immediately before the 1st day of April 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

Canada Evidence Act

Section 37

37. In all proceedings over which the Parliament of Canada has legislative authority, the laws of evidence in force in the province in which such proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this and other Acts of the Parliament of Canada, apply to such proceedings.

British Columbia Motor Vehicle Act

Section 75(1) (2) (3)

75.(1) A document that is certified by the superintendent as a true copy of or extract from a record kept by the superintendent is, without proof of the signature or official position of the person certifying, evidence of the record and of the facts stated in the document.

(2) A certificate of the superintendent that contains a statement based on the records kept by the superintendent is, without proof of the signature or official position of a person giving the certificate, evidence of the facts stated in the certificate.

(3) A document or certificate referred to in subsection (1) or (2) bearing a facsimile signature purporting to be the signature of the superintendent shall be received in all courts for purposes of those subsections without proof that the person applying the facsimile signature did so with lawful authority.

Judgments

Provincial Court of British Columbia

5. Bendrodt Prov. Ct. J. held that the Crown, when seeking a greater penalty pursuant to s. 740 of the Criminal Code (repealed 1985), may rely upon the filing of the certified extract of a B.C. Driving Record by virtue of s. 37 of the Canada Evidence Act; he held himself to be bound by the judgment of the B.C. Court of Appeal in R. v. Porter (1983), 1983 CanLII 234 (BC CA), 5 C.C.C. (3d) 277. He further held that the prosecution had established that the certified extract was indeed from the record of the accused, and that there was no need to particularize the previous convictions in the prosecution's notice of intention to seek greater punishment (R. v. Taylor, 1963 CanLII 694 (BC CA), [1964] 1 C.C.C. 207 (B.C.C.A.)) The case of R. v. Reid, 1970 CanLII 1040 (BC CA), [1970] 5 C.C.C. 368 (B.C.C.A.), in his view stands only for the proposition that, if the Crown chooses to particularize, it ought to do so correctly.

6. The accused was sentenced to the minimum term of imprisonment‑‑three months‑‑to be served intermittently on week‑ends.

County Court of Vancouver

7. Skipp Co. Ct. J. dismissed the appeal because he was bound by R. v. Duncan (B.C.C.A., unreported, No. CA 001477, oral reasons delivered on March 29, 1984, and summarized at 12 W.C.B. 100) in which the B.C. Court of Appeal held that a certified extract of an accused's driving record could be introduced by the Crown to prove previous convictions.

Court of Appeal of British Columbia

8. Seaton J.A., writing for the Court, dismissed the appeal without reasons, emphasizing that the case law of the B.C. Court of Appeal precluded any other result but that it would be useful to have the views of the Supreme Court of Canada.

The Issues

9. The issues in this case can be framed as follows:

First issue

10. Is the "Certified Extract of British Columbia Driving Record" admissible in evidence as proof of previous convictions, under the common law, or is it through the combined effect of s. 37 of the Canada Evidence Act and of s. 75 of the British Columbia Motor Vehicle Act?

Second issue

11. Does section 7 of the Charter require that sufficient notice be given to the accused of the Crown's intent to proceed to proof of those convictions by resort to that certificate?

The First Issue

12. Parliament has the exclusive jurisdiction to legislate on the law of evidence in criminal matters by reason of s. 91(27) of the Constitution Act, 1867. For the most part, Parliament has left the common law in place. It has supplemented the common law with the Canada Evidence Act, which deals generally with evidence within federal jurisdiction, and specific provisions in the Criminal Code and other legislation. The only specific provisions dealing with the proof of previous convictions in proceedings under the Criminal Code are ss. 500(4) and 594(1)(a) of the Code. The mode of proof set out in those provisions was not followed in this case, and the certificate would thus be inadmissible if these provisions set out the exclusive mode of proof of convictions in criminal matters.

13. Section 500(4) provides that a copy of a conviction certified by the judge or the proper officer of the court or proved to be a true copy is "sufficient evidence in any legal proceedings to prove the conviction of that person". Section 594(1)(a) adds that there is no need to prove the signature or the official character of the person appearing to have signed the certificate. The question that must be answered is whether, by providing this specific method of proving prior convictions, the Criminal Code excludes all others.

14. There is nothing in either s. 500(4) or s. 594(1)(a) to indicate that proof of convictions may only be made as provided therein. Rather, s. 500(4) states that the mode of proof provided therein is "sufficient evidence", which tends to indicate that there are other modes of proof. The Ontario Court of Appeal came to this conclusion in R. v. Blackstock (1950), 1950 CanLII 72 (ON CA), 97 C.C.C. 201 at pp. 206‑7:

Much was said upon the hearing of the appeal as to the sufficiency or insufficiency of the proof of all or any of the convictions. Mr. Borins contended that such proof must be made in compliance with the provisions of s. 23 of the Canada Evidence Act, R.S.C. 1927, c. 59 [now s. 23, R.S.C. 1970, c. E‑10], which provides a mode for the proof in any of our Courts of "any proceeding or record whatsoever" of, in, or before our own Courts or those of other countries. Mr. Mathews relies upon s. 982 [now s. 594, R.S.C. 1970, c. C‑34] of the Code itself which provides a method for proof of previous convictions. Proof of the numerous convictions mentioned in the notice to the appellant was sought to be made in documentary form of one kind or another. Undoubtedly upon the English authorities, which I adopt, the three previous convictions which are mentioned in s. 575C(1)(a) [now s. 688(2)(a), R.S.C. 1970, c. C‑34] must be proved strictly, although much more latitude is allowed with respect to the proof of convictions not relied upon as comprising one of these necessary three: see R. v. Turner, [1910] 1 K.B. 346; R. v. Franklin (1909), 3 Cr. App. R. 48; R. v. Chatway (1910), 5 Cr. App. R. 151.

Neither s. 23 of the Canada Evidence Act nor s. 982 of the Code provide in effect that proof of a previous conviction, or even strict proof, may only be made as provided therein. Section 23 merely says that evidence of a proceeding or record "may be made" as therein provided, while s. 982 says merely that a certain certificate of a previous indictment and conviction, or a certain copy of a summary conviction shall, upon proof of the identity of the person of the offender, be sufficient evidence of the conviction.

This decision was followed in R. v. Wilkinson (1978), 1978 CanLII 2559 (BC SC), 5 C.C.C. (3d) 278 (B.C. Co. Ct.) and 284 (C.A.) and, in my view, it is correct.

15. In the absence of an express provision setting out the exclusive mode of proof of prior convictions in proceedings under the Criminal Code, the common law rule would apply. The common law of evidence is in force either through s. 7(2) of the Code or simply because Parliament has never replaced it.

16. In my view, the certificate is hearsay evidence and would not be admissible at trial unless one of the exceptions was applicable. There was much argument in this case as to the scope of the "public documents" exception. In my view, it is not necessary to deal with that question. The certificate is admissible at common law because, irrespective of the hearsay rule, all credible and trustworthy evidence is admissible at a sentencing hearing. In R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, Dickson J., as he then was, speaking for a majority of the Court, wrote at p. 414:

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. [Emphasis added.]

17. A similar statement can be found in Cross on Evidence (6th ed. 1985) at pp. 8‑9:

There are also significant differences in relation to the mixture of rules which applies to issues of fact which arise to be determined after the trial has concluded. In criminal cases issues of fact often arise in relation to the basis for sentencing the accused, or making some other order. In cases tried on indictment where the accused has a criminal record, a statement of his previous convictions and antecedents is prepared by the police in the form of a proof of evidence. This is intended to be used at the sentencing stage, though it is clear that many of the statements in it will amount to hearsay. It seems that this is immaterial so long as the facts are not disputed, but that if they are, it is necessary to prove them by evidence admissible under the rules for the trial.

18. The appellant did not dispute the fact of his convictions, but only the means by which they were to be proved.

19. Although this conclusion is determinative of the first issue in this case, serious queries with respect to the scope of s. 37 of the Canada Evidence Act have been made in the past, as in this case by Seaton J.A. of the British Columbia Court of Appeal, and in my view should therefore be addressed.

20. It is argued in this case that, irrespective of the common law rule, the certified extract of the driving record was admissible pursuant to s. 75(2) of the British Columbia Motor Vehicle Act. The provincial legislation, which, much like ss. 500(4) and 594(1)(a) of the Code, purports to be permissive rather than exclusive, is said to be incorporated into the federal law of evidence by s. 37 of the Canada Evidence Act.

21. This Court has considered the scope of s. 37 of the Canada Evidence Act on two occasions.

22. In Marshall v. The Queen, 1960 CanLII 18 (SCC), [1961] S.C.R. 123, the Court was dealing with provincial legislation that purported to render inadmissible statements which would have been admissible at common law. Kerwin C.J. stated at p. 127:

...by common law a confession is admissible when it is proved to have been made voluntarily in the sense that it was not induced by threats or promises. I agree with the trial judge that the statements here in question were made voluntarily. If subs. 5 of s. 110 of the present Act purported to alter this rule, its application in a trial under the Criminal Code is excluded by that part of s. 36 [now s. 37, R.C.S 1970, c. E‑10] of the Canada Evidence Act which is underlined because s. 7(1) of the Criminal Code retains the old common law....

Cartwright J. stated at pp. 129‑30:

It cannot assist the appellant unless s. 36 of the Canada Evidence Act can be interpreted as providing that where a law in the province in which criminal proceedings are taken renders a statement made under specified circumstances inadmissible in civil proceedings it shall be inadmissible in criminal proceedings also. Parliament has power to so enact, but it does not appear to me that the words of s. 36 are susceptible of the suggested interpretation, and I am forced to conclude that even on the assumption that the statement made by the appellant would have been rendered inadmissible in a civil trial arising out of the motor vehicle accident out of which the criminal charge against the appellant arose (a question which I find unnecessary to decide) they were not rendered inadmissible on the trial of that charge.

I realize that the view which I have expressed restricts the operation of s. 36 within narrow limits in so far as criminal proceedings are concerned, but the contrary view would involve the possibility of the law as to the admissibility in evidence in criminal proceedings of statements made by an accused person varying from province to province and from year to year in accordance with provincial enactments dealing with the rules of evidence in civil cases. It would, in my opinion, require plainer words than have been used to enable us to construe s. 36 as having such an effect.

23. A similar conclusion was reached in Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, where the Court held that the common law rule regarding the secrecy of police informers was incorporated into the criminal law by s. 7(2) of the Criminal Code such that provincial legislation could not, through s. 37 of the Canada Evidence Act, affect that rule. Marshall was followed in R. v. Richardson (1980), 1980 ABCA 368, 57 C.C.C. (2d) 403, with respect to a certificate of ownership of a motor vehicle.

24. Lagarde, in Précis de la loi et des règles de la preuve en matière criminelle (1954), came to the same conclusion (at p. 289):

[TRANSLATION] Section 36 of the Evidence Act, which refers to provincial laws on evidence, applies only where there are no other appropriate provisions of the Evidence Act or the Criminal Code. As we have seen, section 7 of the latter incorporates the provisions of the common law to deal with what it does not cover. In a criminal proceeding, therefore, the provisions of the Criminal Code are applied, and where this is silent, the provisions of the common law and of the Evidence Act. It is only when all these sources have been exhausted that provincial laws on evidence come into play.

as did Fortin in Preuve pénale (1984), at p. 18:

[TRANSLATION] In conclusion, the incorporation of the provincial law of evidence into the criminal law is more a matter of theory than practice. Only provincial statutes on evidence which do not differ from the rules specified by federal legislation or the common law are admissible. As under section 7(2) Cr.C. the common law is the supplementary law in evidentiary matters, there is no void that must be filled by provincial law.

25. In my view, s. 37 of the Canada Evidence Act must be given a narrow scope. I would thus agree with this Court's decisions in Marshall and Bisaillon where it held that the admissibility of confessions and the privilege respecting police informers are matters which are beyond provincial legislation under s. 37. To hold otherwise would allow unacceptable differences from province to province on fundamental matters of criminal evidence. Section 37 refers specifically to "the laws of proof of service of any warrant, summons, subpoena or other document". The service of such documents is a matter within provincial competence and, in my view, s. 37 should be restricted to the proof of matters within provincial competence. While it is true that a driving record is generally a matter within provincial competence, the particular aspect of the driving record that is at issue here is prior convictions under the Criminal Code. This is clearly a matter within federal jurisdiction and, in my view, s. 37 does not incorporate provincial legislation on this subject.

The Second Issue

26. If the Crown does not give advance notice of its intention to use a certificate, is there a violation of s. 7 of the Charter?

27. This issue was not addressed by respondent's attorney in his factum. This is understandable as the appellant, though referring in his argument in his factum to lack of notice as violating s. 7 of the Charter, had not in this Court, nor in the courts below, framed it as one of the issues of the case. Be that as it may, I shall address this second issue briefly.

28. It is appellant's contention that lack of notice deprives the accused of an opportunity to verify the accuracy of the certificate and of cross‑examining the officer who would otherwise have testified to prove the convictions. Given the manner in which the issue was raised in his factum, I understand the appellant is arguing the common law, as regards hearsay in general in sentencing matters, and particularly resort to a certificate in this case, to be in violation of the Charter because of the lack of a requirement that notice must always be given that proof will be made by certificate. I cannot subscribe to such a proposition. The conduct of a trial in general, including the application of the rules of evidence in a given case, must not result in the trial being unfair because the accused has been denied a full opportunity to prepare his case, challenge and answer the Crown's case. If a rule of law, statutory or common law, were framed in such a way that it would be per se a violation of the right to a fair trial, then the statute would be declared inoperative or the common law declared to be otherwise. This is not the case here. I cannot see lack of notice irrevocably resulting in such a situation. In itself the common law rule as regards the sentencing process is not in violation of the Charter. This is not to say that lack of notice and availability of the officer for cross‑examination in a particular case could not result in a violation of the accused's right to a fair trial. In such a case the challenge would come through s. 24 and remedy would inure to the benefit of the accused upon proof of prejudice, or that the certificate evidence be excluded under s. 24(2) if the conditions of that subsection were met. But rare would be such a case. After all, an accused has first hand knowledge of his previous convictions. To know that the certificate is inaccurate does not require his questioning anyone; to raise the matter is also easy. Once the certificate's accuracy is seriously put in issue, it would be incumbent upon the Crown to call whomever signed the certificate and make him or her available for cross‑examination by the accused.

29. But the Charter argument was not put to us within the structure of s. 24. Furthermore, and in any event, there was no attempt to establish that the lack of notice in any way caused a violation of this accused's rights to a fair trial under the Charter. The appellant in this case does not even challenge the certificate's accuracy. I find no merit in his Charter argument. I would accordingly dismiss this appeal.

Appeal dismissed.

Solicitors for the appellant: Layne & Company, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General of British Columbia, Vancouver.