R. v El Boury, 2016 ONSC 4900

Court File and Parties

COURT FILE NO.: 1337/15 DATE: 20160802 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MOHAMED EL BOURY Appellant

COUNSEL: M. Michaud, for the Respondent M. Caroline, for the Appellant

HEARD: July 22, 2016

[On appeal from the judgment of Hawke J. Dated November 17, 2015]

MILLER J.

Reasons for Judgment

1Mohamed El Boury was found guilty November 17, 2015 of, on January 14, 2015, Operating a Motor Vehicle with Blood/Alcohol in Excess of 80mg of alcohol in 100ml of blood. He appeals from that finding on the basis that the learned trial judge erred in holding that the certificate of a qualified technician, tendered in evidence by the Crown, was admissible.

2The Crown submits that the certificate was admissible, but in any event the offence was proven by the calling of viva voce evidence.

3Mr. El Boury was driving a motor vehicle January 14, 2015 when stopped by police. He was arrested for impaired driving, given a breath demand and returned to a police station where he provided two samples of his breath within the prescribed periods of time. The Crown tendered into evidence at trial a Notice of Intention to Produce Certificate s. 258 (7) and a Certificate of a Qualified Technician.

4The only issue at Mr. El Boury’s trial was the admissibility of the Certificate based on whether a copy of it had been given to Mr. El Boury as required by s. 258 (7) of the Criminal Code.

Facts

5The evidence at trial was that the breath technician provided three copies of the certificate to the investigating officer who compared the three copies to make sure they were the same, initialed each of them and then “served” one copy on Mr. El Boury. Mr. El Boury was then lodged in cells pending his release on a Promise to Appear.

6In cross-examination the investigating officer testified that he let Mr. El Boury review Notice and the certificate personally then he took the documents and “they are brought up and placed with his property”. The officer could not recall if he placed the certificate in Mr. El Boury’s hand. He testified that if Mr. El Boury had wanted to pick up the certificate and look at it he could have done so but he could not recall if he actually did.

7The officer was not present when Mr. El Boury was released from custody and testified he was not sure if Mr. El Boury ever received the documents back.

8On this evidence, together with evidence of Mr. El Boury’s signature on the certificate, the trial judge found that Mr. El Boury had “handled” the certificate and this was prima facie evidence of service of a copy of the certificate. The lack of evidence as to whether Mr. El Boury again received the copy of the certificate with his property the trial judge found did not disturb the prima facie evidence of service. The trial judge found she was satisfied on a balance of probabilities that the certificate had been served.

9Upon the trial judge making this finding, Mr. El Boury acceded to a finding of guilt on the Over 80 charge. The accompanying Impaired charge was stayed by the Crown.

10The Crown also called evidence from a case management assistant in the Crown Attorney’s office. This witness testified that she had prepared and logged for disclosure, in addition to other material, a copy of the certificate. The disclosure records showed the disclosure had been provided January 23, 2015 to Peter Favrin, an agent for Mr. El Boury.

11In relation to this evidence the trial judge found that this evidence was hearsay and she did not rely upon it in finding that service of the certificate had been made on Mr. El Boury.

Law

12Section 258 (1) (c) of the Criminal Code provides:

where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, c. 20, s. 3 ]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

13Section 258 (1) (g) provides that:

where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Repealed before coming into force, 2008, c. 20, s. 3 ]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

14And section 258 (7) provides that:

No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

15In support of his position that there was not compliance with s. 258(7) and that the certificate should not have been admitted into evidence, counsel for Mr. El Boury relies on a number of cases, none of which are binding on this Court.

16In R. v. Braulin [1981] B.C.J. No. 1496 (B.C. Cty. Ct.) there was confusion in the testimony of the officer as to whether the accused had been released after having been given the copy of the certificate. The court found that the accused was in fact held in custody, and the copy of the certificate, along with the accused’s other possessions “would have been taken from him”. There was no evidence it had been returned to him on his release. The court held at paragraph 8 “To give a copy of the certificate to the accused and then take it away is not to give it to the accused.” The certificate was not admitted into evidence.

17In R. v. Garson [1982] S.J. No. 366 (Q.B.) the court held that before the appellant can be said to have been given a copy of the certificate it must be handed over to him. He is entitled to study it and take it away with him. It is only when he has been given the certificate in this sense that he can be said to know what case he has to meet at trial and be in a position to properly prepare his defence.

18In R. v. Dhillon, 2007 ONCJ 525, the facts were very similar to this case. The certificate had been shown to and signed by the accused then taken from him to be placed with his other property. There was no evidence that the certificate had been returned to him with his property. The court held that it had been proven on a balance of probabilities that a copy of the certificate had been given to the accused. The court distinguished Garson as that case held that proof that a copy of the certificate had been given to the accused had to have been proven beyond a reasonable doubt.

19In R. v. Wong, 2012 ONCJ 401, a copy of the certificate was “shown” to the accused then taken away and given to another officer. The certificate was not admitted into evidence at trial.

20In R v. Liu, 2014 ONCJ 648, the officer reviewed with Mr. Liu the results of the test as they were outlined on the certificate. He had Mr. Liu sign a copy of the original certificate. Then the officer took back the original certificate and made a copy, which he testified was a true copy of the original, but instead of placing the copy in the direct possession of Mr. Liu as Mr. Liu was in the cells, he placed it in the accused's property locker. There was no evidence that the accused had received his property upon release. The certificate was not admitted into evidence.

21In R. v. Hurlbut, 2015 ONCJ 245, a copy of the certificate was given to Mr. Hurlbut and signed by him. The copy of the certificate was then left at the booking sergeant's desk ostensibly so that it could be put in Mr. Hurlbut's property bag and provided to him on his release, but there was no evidence that the copy was received by any other officer, and there was no evidence that the certificate was placed in his property bag and received by him. The certificate was not admitted into evidence.

22In R. v. Singh, 2016 ONCJ 94, the accused did not sign the copy of the certificate – it was shown to him through the cells with an explanation as to what the document was. Then, the evidence of the officer was “I will bring back the paper that belong to him, put it in his properties, that will later be released back to him when he gets released.” The evidence was that he did not have personal knowledge that the document was given to the accused upon release. The officer could only assume that it had been. The court distinguished this case from R. v. Redford, 2014 ABCA 336 wherein the accused had signed the document.

23The Crown relies on Redford wherein there was evidence that a copy of the certificate was shown to and explained to the accused before being placed into his property but there was no direct evidence as to whether the certificate or any other items of personal property were returned to the accused on release. There was also no evidence that the accused did not recover his personal property and the certificate when he was released from custody.

24The Alberta Court of Appeal in Redford held that a balance of probabilities is the appropriate standard of proof for service of a Certificate of Analyses under s 258(7). At paragraph 38 the Court held that “the facts of this case establish that the respondent was given a copy of the certificate and the notice and that they were explained to him. Thereafter the documents were removed from him for safekeeping.” At paragraph 39 the Court held that “It is sufficient to comply with the requirements of s 258(7) to provide reasonable notice by uncontradicted and credible evidence that the accused was given the documents, and that the nature of the documents was explained.”

25At paragraphs 41 and 42 the Court held that:

What transpires with the documents after that does not render service invalid. 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. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.

Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist.

Analysis

26The law in Ontario is that compliance with s. 258 (7) must be proven on a balance of probabilities. R. v. MacKinnon, [2003] O.J. No. 3896 (C.A.).

27I agree with the conclusion reached by the Alberta Court of Appeal in Redford, and on that basis I would not disturb the finding by the trial judge, that the certificate had been given to the Appellant.

28On this basis I find no error in the trial judge’s conclusion that the certificate was admissible in evidence, and the appeal is dismissed.

29I further agree with the conclusion by the Alberta Court of Appeal in Redford that compliance with s. 258 (7) can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R. v Stinchcombe, [1991] 3 SCR 326.

30The trial judge here was not satisfied that the evidence of disclosure given at trial was sufficient to meet the standard of proof, and I would not disturb that finding.

31The Crown urges me to hold that given the requirements of disclosure in Stinchcombe, a trier of fact should be able to infer that a copy of the certificate was given to the accused in disclosure and it should be for an accused person to raise a Stinchcombe issue if a copy of the certificate was not given. The Crown submits that an accused should be estopped from challenging the admissibility of a certificate pursuant to s. 258 (7) absent a Stinchcombe argument. In this the Crown relies on R. v. Balen, 2002 ONCJ 596.

32With respect, this would place an onus on an accused that is not in keeping with s.258 (7). As noted by the Supreme Court of Canada in R. v. Noble:

These provisions 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.

33Further, the Ontario Court of Appeal in MacKinnon made it clear that compliance with s. 258 (7) must be proven by the Crown on a balance of probabilities. I do not accept the Crown’s argument in this regard.

34I do, however, agree with the submission made by Crown counsel that proof the Over 80 offence was established independent of the certificate when the breath technician gave viva voce evidence. I have considered the submission by counsel for Mr. El Boury that the breath technician’s testimony was wholly reliant on the certificate itself. I do not agree. While the breath technician did, in testimony, accept the contents of the certificate as accurate, the breath technician also gave evidence which was not challenged, including the print out from the approved instrument, establishing that all of the provisions of s. 258 (1) (c) had been met. In particular, evidence was given that:

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

35Even if the certificate was not admissible I would find that there was before the trial court sufficient evidence upon which Mr. El Boury would be found guilty of the offence.

36The appeal is dismissed.