Her Majesty the Queen v. Hersham Algafori, 2016 ONSC 3029

Court File and Parties

COURT FILE NO.: 14-9461 DATE: 2016/05/06 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant – and – HERSHAM ALGAFORI Respondent

COUNSEL: Matthew Geigen-Miller, for the Crown Samantha Robinson, for the Respondent

HEARD: April 27, 2016

Decision on Appeal

RATUSHNY J.

[1] The Crown appeals the respondent’s acquittal of the charge of operating a motor vehicle while disqualified contrary to s. 259(4) of the Criminal Code, RSC 1985, c C-46, and requests a conviction be substituted and the matter remitted to the trial judge for sentencing.

Background Facts

[2] At trial there was no dispute that the accused/respondent had been driving on the day of the offence. There was also no dispute that he had been disqualified from operating a motor vehicle pursuant to an earlier conviction on December 2, 2013 for a drinking and driving offence and a mandatory driving prohibition order made on that same date.

[3] The only trial issue was whether the accused had received reasonable notice of the Crown’s intent to tender a certified copy of the prohibition order at trial as required by sections 24 and 28 of the Canada Evidence Act, RSC 1985, c C-5, so that a certified copy could be admitted as evidence of that essential element of the offence. These sections state:

24 In every case in which the original record could be admitted in evidence,

(a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or

(b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.

28 (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.

(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.

[4] It is clear and well-understood from these sections that a certified copy of the prohibition order was admissible at trial in place of the original prohibition order provided the accused had received “reasonable notice” of not less than seven days of the Crown’s intention to produce that certified copy at trial.

[5] At trial the Crown established that a “Notice of Intent to Produce Documents and/or Records” had been served on the accused well in excess of the seven days minimum required under the Canada Evidence Act. That Notice of Intent, filed as Exhibit 1, specified the document intended to be produced at trial as an “Order of prohibition and notice Dec 2nd 2013”. A copy of the order of prohibition was attached, except it was a police force copy not bearing the accused’s signature.

[6] There was no dispute that the order of prohibition attached to the Notice of Intent was the order that was eventually signed by the accused. That attached prohibition order recited the name of the accused, his conviction for the drinking and driving offence that had led to the prohibition order, notice that its breach would attract another criminal offence, the date of the prohibition order and where it had been imposed. In other words, the prohibition order attached to the Notice of Intent was correct in all respects except it did not contain the accused’s signature.

[7] Two days before the trial the Crown served defence counsel with a certified copy of the same prohibition order but this time as signed by the accused. At trial the Crown sought to file that certified copy.

[8] Defence counsel objected to its admissibility, submitting that because the certified copy of the prohibition order was not the same document as had been attached to the Notice of Intent, the accused had been misled and had not been given “reasonable notice” as required by the Canada Evidence Act.

[9] The trial judge agreed that sections 24 and 28 of the Canada Evidence Act governed the issue of the admissibility of the certified copy of the prohibition order.

[10] She ruled the certified copy was inadmissible because the Notice of Intent had attached a copy of the prohibition order that was unsigned by the accused, with the result that the accused had not been put on notice that a signed copy of it would be placed before the court at trial. She determined this had the possibility of changing the accused’s defence and was, therefore, prejudicial.

[11] It was on the basis of this ruling, without there being evidence of the accused having been disqualified from driving, that he was acquitted.

Grounds of Appeal

[12] The Crown alleges the trial judge erred in law by misapplying the standard of reasonable notice when she refused to admit the certified copy of the prohibition order.

[13] The respondent argues this appeal issue of reasonable notice is a question of fact properly left to the trial process where the trial judge can be presumed to have weighed the evidence before her and made a finding of fact. Alternatively, the respondent says, if the appeal involves an issue of law the Notice of Intent was misleading and confusing and, therefore, unreasonable.

Analysis

Basis Legal Principles

[14] This appeal engages at least four basic legal principles in dealing with issues arising out of sections 24 and 28 of the Canada Evidence Act.

[15] The first is the sometimes “opaque” distinction between law and fact for appeal purposes: R v Good, 1983 ABCA 141, 44 AR 393 at para 9, also referring to LaForest, J.A. in R v Morrison (1982), 42 NBR (2d) 271, 110 APR 271 at para 15:

Distinctions between law and fact are often opaque and no less so in cases devoted to the question of reasonable notice of the intended use of documentary evidence, otherwise hearsay, but made admissible by statutory authority. While the sufficiency of notice is, generally speaking, a pure question of fact properly left to the trial process it may become a question of law, or at least mixed law and fact, according to the means by which the trial judge reached his finding. The distinction was addressed by LaForest, J.A. in Regina v. Morrison (supra) where at p. 199 he noted

If having weighed the evidence the trial judge concludes that in the circumstances of the case notice is not reasonable that will be a question of fact or at most one of mixed fact and law against which there is no appeal so long at least as there is some evidence that will support his finding. But here the judge did not weigh the evidence at all. After an examination of the case law he made the series of rulings from which appeal has been taken in this case. The judge was thereby instructing himself as to what could constitute reasonable notice, and in doing so he erred in law. At no time in his judgment did he consider the weight of the evidence as it was his duty to do. He failed to consider whether the facts before him constituted reasonable notice because of his view of the meaning of 'reasonable notice' as used in the Act. This was a question of law alone. The trial judge simply thought they were legal impediments to his considering the facts before him.

[16] The second is the test for reasonable notice as stated in Good at para 7:

…The real test is that the notice must be reasonable in time and substance and must not be misleading, confusing or otherwise prejudicial. It must clearly and precisely bring home to the accused that the certificate may be used in relation to a charge arising from the incident. No particular form of notice is required and there is no inflexible legal presumption that any explanatory words accompanying service will dilute the clear wording of the notice. Some words may. For example, advice given a suspect in direct contradiction to the form of the notice, could well support a finding of ambiguity. Whether notice is reasonable should be a question of fact in each case where the objection is taken. Then all evidence pertaining to the issue must be weighed by the trial judge before the certificate will be deemed admissible in evidence. However, given a printed notice clear and impactive on its face together with early and proper service thereof, a finding of confusion or ambiguity in the absence of defence evidence to that effect would be rare indeed.

[17] The third is the refusal of appellate courts to “invalidate notices on mere technical objection that the procedure left something to be desired…” because the utility of provisions allowing for a simplification in the production of evidence “is not to be diluted by an insistence on perfection” (Good at para 7).

[18] The fourth is the reminder from R v Dixon, 2006 NBQB 197, 304 NBR (2d) 290 at para 13, that section 28 of the Canada Evidence Act does not require the service of an actual certified copy of the order in question, only reasonable notice of the intention to admit into evidence a certified copy of it.

Error of Law

[19] Applying these basic principles to this appeal, the issue of the admissibility of a certified copy of the prohibition order under sections 24 and 28 of the Canada Evidence Act is clearly a question of law.

[20] As noted in Morrison at para 14, however, “the preliminary findings of fact and inferences to support a decision to admit or reject evidence may be questions of fact or at least of mixed fact and law…” and the “question whether a notice is or is not reasonable for the purpose of admitting a certificate…may, therefore, be a question of mixed fact and law. Whether it is or not depends on how the judge arrives at that conclusion.”

[21] In reviewing how the trial judge arrived at her conclusion of inadmissibility, the trial transcript and her ruling reveal that the focus had narrowed down to the issue of the missing signature on the prohibition order attached to the Notice of Intent. Defence counsel had characterized this as amounting to a document that was not the “same” as the certified copy of the prohibition order and as such, that the accused had been “misled”. The trial judge accepted this and ruled the certified copy as inadmissible because of prejudice to the accused’s defence.

[22] The Crown submits the trial judge did not consider and weigh all the evidence of notice to consider whether the accused had received reasonable notice that a certified copy of the prohibition order would be tendered at trial. Instead, she concentrated her analysis on the single issue of the missing signature, characterizing the certified copy as not being the same prohibition order as attached to the Notice of Intent and in so doing, incorrectly applied the standard of reasonable notice when she refused to admit the certified copy.

[23] As stated in Morrison at para 15:

If having weighed the evidence, the trial judge concludes that in the circumstances of the case the notice is not reasonable, that will be a question of fact or at the most one of mixed fact and law against which there is no appeal so long at least as there is some evidence that will support his finding. But here the judge did not weigh the evidence at all. After an examination of the case law, he made the series of rulings from which appeal has been taken in this case. The judge was thereby instructing himself as to what could constitute reasonable notice, and in doing so he erred in law. At no time in his judgment did he consider the weight of the evidence as it was his duty to do. He failed to consider whether the facts before him constituted reasonable notice because of his view of the meaning of “reasonable notice” as used in the Act. This was a question of law alone. The trial judge simply thought there were legal impediments to his considering the facts before him.

[24] I respectfully conclude, as in Morrison, that the trial judge did fail to consider whether all the facts before her constituted reasonable notice. I adopt the succinct statement, referred to in R v Zorlescu, 2015 ONSC 3458 at para 26, that “reasonable notice is a concept, not a document”.

[25] In focusing on the issue of the lack of a signature, the trial judge failed to weigh all of the evidence of notice in assessing whether there had been reasonable notice and thereby erred in law. She did not consider that the prohibition order attached to the Notice of Intent contained all the correct information related to the identity of the accused, his prior conviction, its date, and the date and place of the prohibition order. Nor did she consider the additional fact of the certified copy of the signed prohibition order having been served on defence counsel two days prior to trial.

[26] All of these facts were relevant to whether there had been reasonable notice under section 28 of the Canada Evidence Act and whether, paraphrasing from Good at para 7, the Notice of Intent had been reasonable in time and substance, whether it had been misleading, confusing or otherwise prejudicial and whether it had clearly and precisely brought home to the accused that the prohibition order might be used in relation to the criminal charge he was facing of having breached it by driving while disqualified.

[27] I agree with the Crown that by her ruling the trial judge was effectively requiring an exact copy of the prohibition order to be attached to the Notice of Intent for there to be compliance with and reasonable notice under section 28 of the Canada Evidence Act. As stated in Good at para 7, referring to no “insistence on perfection” and in Dixon at para 13, this is not correct.

Reasonable Notice

[28] It is evident from all of the facts referred to above, and it is certainly established on more than the requisite balance of probabilities (Zorlescu at para 26) notwithstanding the lack of the accused’s signature on the prohibition order attached to the Notice of Intent, that there was no confusion over the prohibition order that would be entered by way of a certified copy at trial. There is no evidence that the accused was misled, confused or prejudiced by the Notice of Intent. It clearly informed him that the prohibition order attached would be used at his trial. Both documents were the same except for the presence of the accused’s signature on the certified copy. It would be an unreasonable inference made without any factual basis that the omission of his signature on the copy attached to the Notice of Intent could have confused or misled him as to the document to be used at trial.

[29] I find, therefore, that had the trial judge correctly applied the standard of reasonable notice, she would have concluded that more likely than not the accused or his counsel had been reasonably put on notice that a certified copy of the prohibition order might be used at trial.

Conclusion

[30] Accordingly, the certified copy of the prohibition order was admissible at trial pursuant to section 28 of the Canada Evidence Act.

[31] Because the reasonable notice issue was dispositive of the trial, it follows that the verdict would not necessarily have been the same but for the error in law. On the facts before the trial judge I agree with the Crown that a guilty verdict would have been the only verdict available but for the error in law.

[32] It is for these reasons I allow the appeal and set aside the not guilty verdict from the trial judge. I enter a verdict of guilty, remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Justice L. Ratushny Released: May 6, 2016