R. v. Zorlescu, 2015 ONSC 3458

CITATION: R. v. Zorlescu, 2015 ONSC 3458

COURT FILE NO.: CR-14-000001200-AP

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

BOGDAN ZORLESCU Respondent

Luke Schwalm, for the Appellant

Richard Stanwick, for the Respondent

HEARD: April 15, 2015

B. P. O’Marra, J

REASONS FOR JUDGMENT

[ON appeal from the judgement of JUSTICE W. HORKINS of the ontario court of justice dated SEPTEMBER 19, 2014]

OVERVIEW

1The respondent was involved in a motor vehicle collision with a taxi-driver shortly before 7 a.m. on September 29, 2013. He was arrested and charged with operating a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253 (1)(b) of the Criminal Code.

2At trial the crown called two witnesses: the civilian taxi-driver involved in the collision and the arresting officer, Officer Lee. The crown entered the certificate of a qualified breath technician (the “certificate”) as an exhibit through Officer Lee. Defence counsel did not object to the admissibility of the breath certificate at the time it was tendered. However, at the close of the crown’s case, defence counsel argued that the certificate was inadmissible as service and notice had not been established in accordance with s. 258(7) of the Criminal Code. The trial judge found that the certificate was not admissible and granted defence counsel’s motion for a directed verdict on the basis that there was no evidence of the respondent’s blood alcohol concentration. The trial judge denied the crown’s request to re-open its case or recall Officer Lee to clarify his evidence.

3The crown appeals the directed verdict on the following grounds:

1. that the trial judge erred in permitting defence counsel to challenge the admissibility of the certificate after the close of the crown’s case;

2. that the trial judge erred in excluding the certificate; and

3. that the trial judge erred in not allowing the crown to re-open its case.

SUMMARY OF THE EVIDENCE

Testimony of Solomon Lema

4Solomon Lema is a taxi-driver. He testified that he was involved with another driver in a motor vehicle collision on September 29, 2013 at 6:55 a.m. He spoke with Officer Lee at the scene of the collision and saw the other driver take a breath test, get handcuffed and be taken away by the officer.

Testimony of Officer Lee

5Officer Lee testified that he was dispatched to the scene of the collision at Bloor and Sherbourne Streets at 6:56 a.m. on September 29, 2013. He arrived there at 7:01 a.m. Mr. Lema identified the respondent as the second driver involved in the collision.

6Officer Lee noted that the respondent’s speech was slow and his pupils were large and slow to adjust to light. He detected the odour of alcohol on the respondent’s breath. The respondent told him that he had consumed three beers. Officer Lee formed a suspicion that the respondent had alcohol in his system and requested that he provide a sample of his breath into an approved screening device (ASD). The respondent complied. The ASD registered a fail result. At 7:09 a.m., Officer Lee arrested the respondent for Over 80, demanded that he provide breath samples into an approved instrument, read him his rights to counsel, cautioned him and drove him to Traffic Services.

7At Traffic Services, the respondent provided two samples of his breath. The intoxilyzer readings revealed concentrations of 120 milligrams and 110 milligrams of alcohol in 100 milliliters of blood at 8:01 a.m. and 8:23 a.m., respectively.

8The respondent was subsequently taken to a cell where he was served with documents. Officer Lee testified as follows:

I served him a piece of paper called, “What You Need to Know for Your First Appearance”… I served him with a ninety day automatic driver’s license suspension form and a seven day impound form for his vehicle. At ten o’clock I served him with the certificate of qualified breath technician or certificate of qualified technician, at which point in time I explained the form to him. (emphasis added.)

9In examination-in-chief, crown counsel showed Officer Lee a document and asked him to identify it. He replied, “So this is a certificate of a qualified technician.” The crown then asked if the document is “the same certificate that [he] served on Mr. Zorlescu.” The officer testified that it was. He was able to confirm that it was the same document because his name, the date, and the signature of the respondent were on it. He testified that the document was served on September 29, 2013 and indicated breath test readings of 120 milligrams and 110 milligrams of alcohol in 100 milliliters of blood. The officer testified that the document was an original copy because he could feel the indentation from his pen on the back of the paper. The crown then asked that the certificate be entered as an exhibit.

10The document tendered as Exhibit 3 at trial is titled “Certificate of a Qualified Technician”. At the bottom of this one-page document is a section in bold print titled “Notice in Accordance with Section 258 (7) of the Criminal Code”. The signature of the respondent appears to the right of the following words on the printed form:

“You are hereby notified that it is intended to produce this certificate at your trial. I acknowledge receipt of a true copy of this certificate”. Below that portion are the words “served by David Lee Badge No. 10539”. It is dated September 29, 2013 at Toronto. (emphasis added)

11Defence counsel did not object to the admissibility of the certificate. The trial judge asked the witness for clarification regarding the time of the second intoxilyzer test.

12In cross-examination, Officer Lee confirmed that the certificate entered as Exhibit 3 was the original. Defence counsel then asked Officer Lee what he did with the original certificate. Officer Lee replied that after the accused signed the certificate, he “kept it with [him] until [he] returned back to 51 Division for the remainder of the paper work.”

RULING AT TRIAL

13After the crown closed its case, defence counsel stated that the evidence was muddled as to whether Officer Lee handed a copy of the certificate to the accused. Crown counsel noted that the officer listed the certificate as one of the documents that he served on the accused. The trial judge stated that he made a similar marginal note, and stated, “I am not sure he ever said that he provided the accused with a true copy of it.”

14The crown then asked if it was not sufficient that Officer Lee testified that he served the certificate on the accused. The trial judge responded, “But then he identified Exhibit 3 as the original too, so how could he have served that on the – do you see what’s missing?” The trial judge then said, “Well, he contradicts himself if you take it literally, that he served the certificate and yet here’s the original that he kept. So what did he give to the accused?” The trial judge stated that the officer had every opportunity in cross-examination to explain what he did with the signed certificate and he said he took it back to the station with him. The trial judge noted that the officer did not make any reference to a “copy.”

15In his ruling, the trial judge found that it would be unfair to allow crown counsel to re-open since the issue did not arise until the cross-examination. He noted that the issue was “a sort of defect in a very technical area,” but stated that “fundamentally, because it was explored in cross-examination I don’t think it’s right to allow the crown to re-open to repair that damage, even though it’s obviously a very... ‘technical’ slip. I think you’re stuck with it.” On this basis, the trial judge granted defence counsel’s motion for a directed verdict.

TIMING OF THE OBJECTION

16The Ontario Court of Appeal addressed this issue in R. v. Kutynec 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347 at paras. 13 and 14.

13 Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested than 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), 1984 CanLII 3004 (PE SCAD), 14 C.C.C. (3d) 82, 28 M.V.R. 144 (P.E.I. C.A.), at p. 91 C.C.C., p. 155 M.V.R.; J. Sandy Tse, “Charter Remedies: Procedural Issues” (1989), 69 C.R. (3d) 129, at pp. 136-40.

14 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.

17That court went on to explain at para. 20 that a trial judge has a discretion to allow counsel to challenge evidence already received when the interests of justice so require:

20 I do not suggest that a trial judge can never consider, at a later point in the trial, the admissibility of evidence which has been tendered without objection. A trial judge has a discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant. For example, as in R. v. Arbour, a judgment of the Court of Appeal for Ontario, released July 28, 1990 [now reported 4 C.R.R. (2d) 369], a question as to the admissibility of evidence already before the trier of fact may arise from evidence given at a subsequent point in the proceedings. In such cases, a trial judge may well be obliged to consider the question of the admissibility of the earlier evidence and, if the circumstances warrant it, allow counsel to reopen the issue.

18In my view, the trial judge did not err by allowing defence counsel to object to the admissibility of the certificate after it was filed as an exhibit. The issue arose in cross-examination when Officer Lee testified that he retained the original and neglected to say that he provided a copy to the respondent. The transcript does not suggest that defence counsel deliberately delayed his objection to the crown’s detriment. He gave the officer an opportunity to explain what he did with the original copy of the certificate.

RE-OPENING THE CROWN’S CASE

19The Supreme Court of Canada addressed this issue in R. v. M.B.P. 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555 at paras. 19, 26, 42 and 43.

19 The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense – that is, will be prejudiced in his or her defence. A trial judge’s exercise of discretion to permit the Crown’s case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice are served.

26 While I do not propose to provide an exhaustive review of the jurisprudence in the area, I believe that the authorities on reopening show clearly that courts have always attached great significance to the stage reached in the proceedings, drawing a particularly sharp distinction between the point at which the Crown has closed it case and the defence has simply moved for a directed verdict (the second phase described above), and the point at which the defence has closed its case (the third phase).

42 In other words, I agree with respondent’s counsel in this case that there comes a point when “enough is enough”, and a mistake or omission by the Crown must necessarily become fatal. Once the defence starts to “meet the case”, thus revealing its own case, the Crown should, except in the narrowest of circumstances, be “locked into” the case which, upon closing, it has said the defence must answer. The Crown must not be allowed in any way to change that case. To hold otherwise would be to undermine the guiding principle against self-incrimination.

43 It is for this very important reason that Robillard, supra, with its more generous approach to a trial judge’s discretion over reopening, even after the defence has closed its case, must be narrowly construed as applying only to situations where the Crown is seeking to reopen in order to correct a matter of form, and not generally to all situations where the defence has started to answer the case against it. Importantly, the Crown in Robillard was merely seeking to introduce non-controversial evidence which it would reasonably have been expected to introduce in order to support its case, but which it had omitted as a result of inadvertence. It was not attempting in any way to change the case which it had upon closing. I would also note that Robillard was decided in a pre-Charter era. With the entrenchment of the principle against self-incrimination in the Charter, it becomes necessary to ensure that the rules governing reopening are consistent with constitutional imperatives. Accordingly, any departure from the basic principle that the Crown not be allowed to reopen once an accused starts to reveal his or her defence must be assessed keeping that in mind.

20The decision by a trial judge whether to permit the crown to re-open 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. See R. v. S.G.G. 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at para. 29.

21In the case before me the re-opening of the crown’s case would have included the recall of the arresting officer. The sole issue to be canvassed was to clarify whether a notice had been served of the intention to file the certificate. The issue did not arise until after the certificate had been filed and in the course of cross-examination. The trial judge referred to this as a “technical” issue, but it had drastic consequences for the prosecution.

22The crown would have had a valid basis to re-examine the officer on this issue if it had not closed its case. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case. See R. v. Candir, 2009 ONCA 915 at para. 148.

23The re-opening of the crown’s case would not have caused the type of prejudice identified by the Supreme Court of Canada in M.B.P. In the circumstances the trial judge failed to exercise his discretion judicially in refusing the crown’s request.

EXCLUSION OF THE CERTIFICATE

24The respondent was acquitted at trial on a motion for a directed verdict at the conclusion of the crown’s case. The motion was premised on the exclusion of the certificate of analysis related to the issue of notice.

25The test for a directed verdict is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. See United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 (S.C.C.). There must be some evidence for every essential element of the crime.

26In R. v. Oslowski, 2006 ONCJ 488, [2006] O.J. No. 5036, Justice Duncan provided a useful summary of the jurisprudence on the requirement of reasonable notice under s. 258 of the Criminal Code:

31 Reasonable notice is a concept, not a document: R. v. Spreen (1987) 1987 ABCA 189, 40 CCC (3d) 190 Alta CA. As a concept, it is capable of evolution and must be considered in the existing legal context. That context includes the advent of full pre-trial disclosure of all relevant evidence to the defence. Such disclosure substantially if not wholly fulfills the purposes that this provision, rooted in the pre-disclosure era, was designed to serve: see R. v. Balen (2003), 30 M.V.R. (4th) 1 aff’d 39 M.V.R. (4th) 94. A further legal development is the decision of the Court Appeal in R. v. MacKinnon, 2003 CanLII 48350 (ON CA), [2003] O.J No. 3896 clarifying that reasonable notice is a question to be determined on the balance of probabilities, and not proven beyond a reasonable doubt. It seems to me that these two developments render much of the earlier case law obsolete and certainly warrant a departure from the punctiliousness of former days.

32 Having said that, there are a number of relevant principles from the decided cases under this and similar provisions in other statutes: Notice need not be in writing: R. v. Bowles (1974), 1974 CanLII 1442 (ON CA), 16 C.C.C. (2d) 425 (Ont. CA). Notice need not be formal in any way: R. v. Penno (1977), 1977 CanLII 1626 (BC CA), 35 C.C.C. (2d) 266 (BCCA). Notice may be given to counsel or counsel's representative: R. v. Meyer (1976), 1973 CanLII 1525 (BC CA), 29 C.C.C. (2d) 165 (BCCA). Notice is directed to alerting the other party as to the possibility, not the certainty, that a certificate will be used - it is notice that the certificate may be used in evidence; R. v. Good et al (1983), 6. C.C.C. (3d) 105 (Alta.CA).

33 Further, there is a consistent line of authority holding that, where no notice at all has been given, the tendering of a certificate at a preliminary inquiry provides sufficient compliance with the notice requirement: R. v. Kwok (2002), 2002 BCCA 177, 164 C.C.C. (3d) 182 (BCCA); R. v. Chang (1996), 1996 CanLII 2996 (BC CA), 106 C.C.C. (3d) 87 (BCCA); R. v. Norris, 1993 CanLII 681 (BC CA), [1993] B.C.J. No. 1900, 57 W.A.C. 133 (BCCA); R. v. Penno supra R. v. Cordes (1978), 1978 ALTASCAD 94, 40 C.C.C. (2d) 442 (Alta.CA) and most recently R. v. Dillon, [2005] O.J. No. 2516 Hill J. Since no notice per se was given in any of those cases, it is apparent that those cases have interpreted the section as meaning "put on notice". In other words, nothing, written or verbal has to be specifically "given".

34 Finally, whether reasonable notice has been given is a question of fact: R. v. Morrison (1982) 1982 CanLII 3670 (NB CA), 70 C.C.C. (2d) 193 (NBCA per LaForest J.A.). This is important because, as a question of fact, its resolution is a matter of reason, logic, common sense and experience applied to evidence, and not a matter of precedent. Further, like all facts, it can be established by direct evidence or inference.

35 Accordingly, the issue becomes whether the court is satisfied on a balance of probabilities by direct evidence or by inference that, one way or another, the defendant or his counsel was reasonably put on notice that a certificate might be used at his trial. The short resolution of that issue in this case is that I am satisfied that, on the night of the breath testing, the arresting officer did provide notice of intention to the defendant at the same time that he served the certificate of analysis itself. While his notes were not specific, it is my view that it is more likely than not that the notice of intent given at that time was in relation to the concurrently served certificate and not in relation to the breach of probation charge.

36 Further, quite apart from the above, it is my view that the service of the certificate itself on a defendant represented by counsel satisfies the test as set out above. After all, in any other case where a defendant represented by counsel receives a package of disclosure, it goes without saying that it is understood that the material may be presented in evidence. Why should the understanding be any different here? Add to this understanding the fact that proof by certificate is a routine procedure and the certificate's admissibility as evidence is clearly set out in a well-known statutory provision, and the conclusion is inescapable that the test for notice has been satisfied.

27In the case at bar there was evidence that a copy of the certificate was served on the respondent, including the following:

(i) the evidence of Officer Lee

(ii) the signed acknowledgement by the respondent on Exhibit 3 that he had received a true copy of the certificate.

28Proof of notice was not an essential element to be proven beyond a reasonable doubt. The onus on that issue was a balance of probabilities. Whatever confusion there may have been as to what, if anything, was actually given to the respondent at the station, there was evidence that he had been served. The order for a directed verdict was an error of law that requires a new trial.

CONCLUSIONS

(i) the trial judge did not err in allowing the defence to object to the admissibility of the certificate after it had been identified as an exhibit.

(ii) the trial judge failed to exercise his discretion judicially in not allowing the crown to re-open its case.

(iii) if I am in error in regard to item ii), there must be a new trial in any event based on the error of law on the directed verdict.

RESULT

29Appeal allowed. A new trial is ordered before a different judge.