Court File and Parties

COURT FILE NO.: 464/14 DATE: 20170420

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

• and -

TERRY WHITEHEAD Respondent

SUMMARY CONVICTION APPEAL JUDGMENT [On Appeal from the Judgment of the Honourable B.W. Duncan, Dated July 16, 2014]

DURNO, J.

[1] The respondent was tried on a charge of driving having consumed excess alcohol. He was acquitted when the trial judge found the Certificate of Analysis could not be relied upon to establish the elements of the offence because it was dated one year before the samples were taken. His Honour found that he had a reasonable doubt and acquitted the respondent.

[2] The Crown appeals contending the trial judge erred when there was an obvious clerical error in the Certificate and the balance of the trial evidence established the samples were taken on the date alleged in the information. For the first time on appeal, the Crown relies upon a Court of Appeal judgment with undistinguishable facts where the Court found the Certificate was admissible and could be relied upon. The Crown argues the result should be a finding of guilt and a sentence imposed by this Court.

[3] The respondent “reluctantly” concedes that the Court of Appeal judgment cannot be distinguished and that the trial judge erred. He submits that the proper order is for a new trial.

[4] For the following reasons, the appeal is allowed, a conviction entered and the respondent sentenced to a $1000 fine and a 12-month driving prohibition.

The Trial Evidence

[5] The respondent was stopped at a RIDE program by Constable Haramis in the early morning hours on March 28, 2013. The officer formed a reasonable suspicion the respondent had alcohol in his body, made a demand for an Approved Screening Device breath sample, administered the test which resulted in a ‘fail’ reading and arrested the respondent. He was taken to the police division where he provided two breath samples that analyzed over the legal limit.

[6] Constable Haramis testified that he prepared the Certificate of a Qualified Technician and Notice of Intention to Produce the Certificate. Constable Lovell, the technician who administered the Intoxilyzer test signed the Certificate.

[7] The Notice of Intention to Produce Certificate and Certificate of Analysis were admitted into evidence without objection from trial counsel (not Mr. De Lisio). The Notice was dated March 28, 2013. The Certificate noted the breath samples were taken at 0101 a.m. and 0124 a.m. on March 28, 2013. Both ‘2013’ entries were originally typed 2012 and had the last digit changed to ‘3’ in script. The Certificate was dated March 28, 2012, and signed by Constable Lovell. The 2012 was typed. The readings were both 120 milligrams of alcohol in 100 millilitres of blood. The Certificate was served at 1:49 a.m. on March 28, 2013.

[8] Trial counsel’s cross-examination of the officer covered 50 pages of the transcript. Counsel asked no questions regarding the Certificate dates.

[9] The trial judge granted the respondent’s application to cross-examine the Qualified Technician but limited the cross-examination to the meaning of the “timed out air blank test” that was noted on the Intoxilyzer Test Record Card. The cross-examination of the technician covered just over one page of transcript. Counsel asked no questions regarding the Certificate.

[10] The respondent called no evidence.

The Arguments at Trial

[11] As no defence evidence was called, the Crown made his submissions first. Very shortly after he started, the trial judge raised two issues with regards to the Certificate. First, that there were un-initialed changes and second, the Certificate was dated a different date than the date the samples were taken.

[12] When the Crown had completed his submissions, defence counsel expressed concerns regarding the changes to the Certificate not being initialed as well as the different dates. He also made submissions regarding the alcohol standard, that the Crown could have alleviated some of the alcohol solution problems if the Crown called Constable Lovell and that there was no video recording of the Intoxilyzer being prepared. There is nothing in trial counsel’s submissions that indicated whether he would have raised the Certificate issues had the trial judge not done so. He provided no authorities to His Honour with regards to Certificates.

The Reasons for Judgment

[13] His Honour found that despite “a very thorough exploration of the officer’s setting up his mobile breath machine” and the few instances that were not in precise accord with that training manual, he was not left with a reasonable doubt. The Crown was not required to establish perfect compliance with the matters in the manual to rely upon the presumption. Once certain things were shown, the onus was on the defence to show the Intoxilyzer was malfunctioning or operated improperly. The evidence fell far short of showing any discrepancy or variation that would amount to improper operation. The trial judge found the procedures followed showed substantial compliance. The variations were trifling and of no significance.

[14] With regards to the Certificate His Honour held:

I was originally concerned with an alteration of the date that the breath samples were taken from a typed 2012, having the last digit overwritten in script to be a three, then reading 2013. Some caselaw holds that such alterations must be initialed. (See R. v. Williamson, [2004] O.J. No. 3978) Crown counsel, however, points out that all or most of the blanks in the Certificate were filled in by the arresting officer, Haramis, and not the qualified technician, Christine Lovell. And this raises a more fundamental issue, is this a Certificate of the qualified technician? I think it is. I can think of no reason why the Certificate could not be prepared by someone other than the technician, provided the qualified technician is prepared to adopt it as her own by her signature. Clearly most legal documents, such as affidavits, are drafted and prepared by lawyers or their assistants, but when signed by the client the words become the words of the client. I think that’s exactly what has occurred here.

But there’s another wrinkle. The certifying signature by the qualified technician is dated March 28, 2012, a year before the tests were taken on its face. The Certificate is evidence of the facts stated in it by virtue of the Criminal Code. It is not evidence of something else, such as what I believe the officer meant to say. So on the face of it we have qualified technician certifying statements made about a test a year before the tests were even performed. I think this cannot be considered a valid adoption and certification of those statements that were made by someone else. Accordingly, under the peculiar circumstances here, in my view, this cannot be considered the Certificate of a qualified technician, Lovell, who performed the tests.

[15] His Honour then rejected the Crown’s fallback position that he could rely upon the Intoxilyzer test records that were also in evidence. The trial judge reached that conclusion because they did not provide the necessary evidence since the records showed only numbers without reference to what was being measured; for example, milligrams of alcohol per 100 millilitres of blood.

[16] His Honour concluded as follows:

Now this I should say in closing, this offence and all of its surrounding case law is highly technical. It’s in many respects a minefield for police and prosecutors. But the prosecution is given a substantial leg up with the evidentiary shortcuts that the statute provides. The trade-off for that is that the Crown will be held to strict compliance. That is not to say that the courts should be silly or hyper-technical, but nor should we fill in gaps or correct miscues in the evidence, even when what occurred might seem to be an obvious error.

Mr. Whitehead, you are the recipient of the court’s interpretation of these sections that is technical, but that’s your entitlement. It’s undoubtedly a case in which you were certainly guilty but you are entitled to the benefit of reasonable doubt when the case had not been proven according to law, and you are the beneficiary of that today, so you are entitled to be found not guilty.

Analysis

The Certificate of Analysis

[17] In R. v. Moratto, [2001] O.J. No. 1259 (C.A.), the trial judge refused to admit the Certificate of Analysis and found a discrepancy in the Certificate was “evidence to the contrary.” While the endorsement of the Court of Appeal is brief, when first raised on this appeal it appeared the Moratto Certificate was similar to the one in this appeal. The Appeal Books and factums in Moratto were obtained and provided to counsel who were given an opportunity to make further submissions with regards to this issue and the order should the appeal be allowed. The Crown made no further submissions on the Certificate issue. The respondent conceded the appeal must be allowed and argued that a new trial should be ordered. The Crown presented further arguments that a conviction should follow.

[18] In Moratto, the two breath samples were noted to have been taken at 7:52 p.m. and 8:13 p.m. on January 31, 1998. The Certificate was dated January 31, 1988, ten years before the samples were provided. It was served January 31, 1998.

[19] The trial judge found the Certificate had contradictory information and could not support a conviction. The Certificate error established “evidence to the contrary” so that the presumption in s. 258(1)(c) applied.

[20] On the Crown SCA, McRae J. found the trial judge had admitted the Certificate but should have ignored the error as it was immaterial and did not prejudice Moratto. Further, the SCAJ found there was no evidence to the contrary. The statutory presumption applied and the respondent was found guilty.

[21] In dismissing Moratto’s appeal the Court of Appeal held:

1 … Without deciding whether a material defect on the face of a Certificate could render the Certificate inadmissible, we are of the view that in this case, the discrepancy regarding the date on which the Certificate was prepared was immaterial. Accordingly, there was no basis for refusing to admit the Certificate and to the extent the trial judge ruled otherwise, he was in error.

2 We are also of the view that the trial judge erred in concluding that the aforementioned discrepancy could constitute evidence to the contrary. In particular, having regard to the whole of the evidence, it was not open to the trial judge to use this discrepancy to call into question the reliability of the material aspects of the Certificate. Accordingly, leave to appeal is granted but the appeal is dismissed.

[22] Both counsel submit that the Court of Appeal’s judgment in Moratto is not distinguishable and the trial judge erred in not relying upon the Certificate. I agree. There is no issue that the “material aspects” of this Certificate are not called into question. The Certificate complied with the Criminal Code.

[23] The respondent argued that it was not clear whether the trial judge found the Certificate to be inadmissible or if it was admissible but he could not rely upon it. Given His Honour’s finding it was not the Qualified Technician’s Certificate, it appears the finding was that it was inadmissible. However, even if I am wrong in that conclusion, I do not see how the distinction impacts on the appeal. If the Certificate was ruled inadmissible, it should have been admissible. If it was admissible but could not been relied upon, it should have been relied upon.

[24] The facts mirror those in Moratto, a conviction was entered on the SCA and the Court of Appeal upheld that judgment. Accordingly, the appeal is allowed.

Should a new trial be ordered or the respondent convicted and sentenced?

[25] The parties differ as to whether a new trial should be ordered, as the respondent submits, or a conviction entered and sentence imposed in this Court as the appellant contends because the Crown seeks only the minimum sentence. The respondent submits that a new trial should be ordered because at trial defence counsel may have conducted the defence on the basis of the Certificate challenges. If the Certificate was inadmissible, the respondent may have pursued other areas or defences, including testifying.

[26] Whether to order a new trial or enter a conviction was considered in R. v. Cassidy (1989), 50 C.C.C. (3d) 193 (S.C.C.) where the Court concluded the following criteria must be met before an appellate court can enter a conviction and impose sentence. The Crown:

(1) establishes that an error of law was committed at trial; (2) satisfies the appellate court that had the law been properly applied, the verdict would not have been the same; and (3) further demonstrates the accused should have been found guilty 'but for' the error of law.

[27] Before a conviction can be entered, all necessary findings to support a finding of guilt must have been made either explicitly or implicitly, or not be in issue. The test must be applied strictly: at para. 16.

[28] I am persuaded that the respondent should be found guilty, convicted and sentenced. Applying the Cassidy criteria, the Crown has established an error in law and had Moratto been applied there would have been a conviction. I find the respondent should have been found guilty but for the error. Indeed, the trial judge said so.

[29] I am not persuaded there should be a new trial to permit the respondent an opportunity to argue areas that were never addressed at the trial. While I agree that trial counsel never said whether he was going to raise the Certificate issues because His Honour raised the concerns at the outset of the Crown’s submissions, I find it is speculative to suggest that there might have been some other avenues available for the defence. There is no suggestion what that defence might be and nothing from trial counsel as to what could or would have been done differently.

[30] The insurmountable hurdle the respondent faces is that trial counsel did not rely solely on the Certificate issue, assuming he was going to submit the Certificate was deficient. He conducted the defence with a detailed and exhaustive cross-examination on other issues and brought a partially successful application to have the technician called to testify. Counsel defended the case on at least one and possibly two bases. Neither included the defence calling evidence. Those were tactical decisions within the control of trial counsel with input from the respondent.

[31] What the respondent now seeks is an opportunity to take an unspecified second or third approach to defending the case. Had it been apparent that trial counsel decided to rely on the Certificate issues only, ask no questions, call no evidence and argue the Certificate issues at the end of the trial or when they it was introduced, it might have been possible to argue there should be a new trial although there is no suggestion of ineffective assistance of trial counsel. That is not what happened.

[32] The respondent was represented by experienced counsel who defended the case on at least the basis of the documentation filed from the Intoxilyzer and conducted an exhaustive cross-examination. The trial judge addressed the issues raised and rejected the submissions that the record should leave him with a reasonable doubt as to the respondent’s guilt.

Conclusion

[33] The respondent is found guilty, convicted and sentenced to the minimum fine of $1000. He will have six months to pay the fine. There will be a one year driving prohibition under s. 259(1)(a).

Durno J. Released: April 20, 2017