Court File and Parties

COURT FILE NO.: 17-50000004-00AP DATE: 20171117 SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – RAFAL MATUSIEWICZ Respondent

Counsel: Melissa Mandel, for the Appellant Justin Marchand, for the Respondent

HEARD: October 18, 2017

BEFORE: Byrne J.

REASONS FOR DECISION

[1] On January 9, 2017, the respondent was acquitted during his trial in the Ontario Court of Justice of one count of impaired driving and one count of over 80.

[2] The charges stem from a single motor vehicle accident. The respondent was arrested and provided two samples of his breath. Those readings were 223 and 211 mgs/alcohol per 100ml blood. The breath samples were possibly taken more than two hours after the time of driving so at the trial proper, the Crown intended to prove her case by calling the Qualified Breath Technician (QBT) and toxicology evidence. After hearing the testimony of the civilian witness and the arresting officer, the Crown attempted to call the QBT to the stand. The trial judge refused to allow her to do so and stated that there had to be a certificate and without a certificate her case was deficient. The trial judge then abruptly dismissed the charges without allowing any submissions to be made.

[3] The Crown appeals those acquittals on the basis that the trial judge erred by:

(1) Dismissing the charges without allowing the Crown to call the QBT in the absence of a certificate; and

(2) Dismissing the charges against the respondent without hearing submissions.

[4] Section 258(1)(g) of the Criminal Code permits the Crown to establish the results of an analysis of a breath sample by means of a certificate. This statutory short-cut enables the Crown to dispense with the calling of viva voce evidence from the person who conducted the analysis.

R. v. Alex, 2017 SCC 37, 349 C.C.C. (3d) 383, at paras. 2-3, 17-20.

[5] This evidentiary advantage does not, however, preclude the Crown from calling the QBT to testify to the manner in which he or she conducted the analysis and the test results. The law is clear, where the Crown is not relying on a certificate, they are free to prove their case through viva voce evidence.

[6] The Crown in this case was denied that opportunity when the trial judge brought the case to an abrupt halt and stated that the Crown’s case was deficient because no certificate was tendered and dismissed the charges.

[7] The evidence of the QBT and the toxicologist were relevant and material and absent an exclusionary rule barring it, of which there was none, should have been allowed.

[8] This error was exacerbated when the trial judge failed to give Crown counsel an opportunity to make submissions with respect to calling further evidence or with respect to the trial at large. Failure to provide the parties the opportunity to present full submissions is, by itself, a fundamental error in law.

R. v. Al-Fartossy, 2007 ABCA 406, A.J. No. 1446, at para. 25. R. v. Aucoin, [1979] 1 S.C.R. 554. R. v. Ramsey, 2013 ONSC 5182, O.J. No. 3677 (SCAC), at para. 7. R. v. Sharkey, 2015 ONSC 1657, O.J. No. 1275 (SCAC), at para. 20.

[9] The respondent concedes that not allowing submission amounts to an overriding and palpable error. He, however, asks this court to find that even if submissions had been allowed, the result would not have been different.

[10] I disagree.

[11] Not only was the Crown precluded from making submissions on the trial proper but they were precluded from calling material and relevant evidence. They were precluded from completing their case.

[12] In my view, this is a clear case of error on the part of the trial judge that requires the matter be remitted back for a new trial.

[13] The respondent is ordered to attend at the Ontario Court of Justice, 2201 Finch Avenue West, courtroom 202 at 9 a.m. on December 13, 2017 to set a date for trial.

[14] Appeal allowed.

Byrne J. Released: November 17, 2017