Court File and Parties

COURT FILE NO.: AP-18-05 DATE: 2018-08-29 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

- and -

BOJAN KANLIC Respondent

HEARD: August 10, 2018

A.J. Goodman J.:

REASONS FOR JUDGMENT

(On Appeal from the Honourable Justice Zivolak)

[1] This is an appeal against an acquittal entered on October 2, 2017 by Zivolak J. of the Ontario Court of Justice at Hamilton, Ontario.

[2] The respondent, Bojan Kanlic (“Kanlic”) was charged with operating a motor vehicle with a blood alcohol content exceeding 80 milligrams, contrary to section 253(1)(b) of the Criminal Code.

[3] In the Notice of Appeal, the appellant raises three grounds of appeal; namely, that the trial judge misapprehended the evidence and erred in law in making finding of facts that were not available on the evidence; the judge erred in determining the certificate of a qualified technician was flawed after it had been made a numbered exhibit, and the trial judge erred by refusing the Crown application to reopen its case and call the breath technician after the ruling that the certificate was flawed.

[4] Neither the respondent nor anyone on his behalf attended the hearing and no materials were submitted for this appeal, despite being duly and properly served on at least two occasions. The summary conviction appeal proceeded on the basis of Rule 40.22(2) of the Criminal Proceedings Rules for the Superior Court of Justice.

The Evidence at Trial:

[5] On Saturday, March 26th, 2016 Constable Parmenter (“Parmenter”) was conducting a R.I.D.E. program on the northbound Centennial Parkway on-ramp to the Northbound Q.E.W. in the City of Hamilton.

[6] Parmenter observed a black BMW bearing Ontario licence plates AXRN 226 enter the R.I.D.E. program. He approached the vehicle and spoke to the lone male driver. While speaking to the driver, Parmenter detected an odour of alcoholic beverage coming from within the BMW. He formed reasonable suspicion that the driver of the motor vehicle had consumed alcohol.

[7] The driver of the BMW identified himself with a valid Ontario driver’s licence as the respondent.

[8] At 10:18 p.m., Parmenter read Kanlic the Demand for Approved Screening Device and asked whether he understood, to which Kanlic responded “yes”. At 10:20 pm, Kanlic provided a suitable sample into the Approved Screening Device which registered a “Fail”.

[9] At 10:20 p.m., Parmenter formed the reasonable grounds that Kanlic was operating a motor vehicle while over 80mgs of alcohol in 100mls of blood. He advised Kanlic that he was under arrest for that offence prior to handcuffing him and reading his rights to counsel. At 10:27 p.m., the Accused was transported to the Burlington Detachment, where a call to duty counsel was made at 10:44 p.m. The Accused spoke with duty counsel in a private booth at 10:53 p.m.

[10] Kanlic was turned over to Constable Westhead for the purposes of breath tests at 10:58 p.m.

[11] The first suitable sample was taken at 11:11 p.m. and resulted in a reading of 114 milligrams of alcohol in 100 millimeters of blood. The second test was completed at 11:33 p.m. and resulted in a reading of 113 milligrams of alcohol in 100 millimeters of blood. Kanlic was released from the police station.

Positions of the Parties:

[12] Mr. McLean submits that the trial judge incorrectly ruled that the certificate of a qualified breath technician was flawed. The effect of this legal error was compounded by the fact that the trial judge raised the issue for the first time in her judgment, causing significant prejudice to the Crown.

[13] The Crown says that the trial judge erred in rejecting the certificate after it had been properly admitted as a full exhibit for the truth of its contents as the Crown relied on its admission in framing its case to the court. Had the issue been raised at the time of the certificate’s admission into evidence, the Crown had recourse to other witnesses. The Crown says that the question becomes one of an error in law in arriving at the conclusion that the prosecution did not establish the over 80 charge on an alleged flawed certificate.

[14] A further ground is premised on the argument that the trial judge erred by failing to allow the Crown to call the witness officer or declare a mistrial at that stage of the proceedings.

Discussion:

[15] The focus of the appeal is that the trial judge committed legal error with regards to a finding of inadmissibility of the certificate of a qualified technician.

[16] The appellant asks this Court to consider this appeal as an error of law as distinct from a determination of unreasonable verdict. The appellant submits that this court can and ought to substitute its finding for that of the trial judge. The appellant acknowledges that there is no real dispute with the facts.

[17] Did the trial judge err in deciding that the certificate of a qualified Breath Technician was flawed?

[18] The trial judge based her determination on the fact that one portion of the certificate lacked a date. Specifically, the part found at the bottom of the certificate reads: “…on this ___ date of ____ at Burlington OPP in the Province of Ontario.”

[19] The certificate was dated in the other areas, including and specifically next to where the value of each sample was entered. Despite the certificate being dated elsewhere, the trial judge found the blank date line to be a “material absence” which rendered the certificate defective. She subsequently held that she could not rely on the certificate as evidence.

[20] There was no challenge to the admissibility of the certificate at the time it was entered into evidence.

Application of the Legal Principles to this Case:

[21] Section 258(1)(g) of the Criminal Code lists several prerequisites for a certificate to be admissible. It provides:

(g) 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 sample 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 a 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.

[22] The preponderance of the jurisprudence related to this area of the law discusses problems arising from incomplete certificates related to the times of the samples and the weight to be accorded. That is not the issue in this case as the appeal centres about the admissibility of the certificate.

[23] Clearly, s. 258(1)(g) does not specify any particular form in which information must be conveyed on the certificate. The form of technicians’ certificates varies both from province to province. Despite the fact that the format, number and location of dates and times on the various certificate forms used across the country are not identical, they all tend to conform to the s. 258(1)(g) requirements. As mentioned, this is because the law does not prescribe a particular form for the certificate: R. v Gunn, 2010 SKCA 44, 253 C.C.C. (3d) 1, at para. 38.

The Criminal Code does not prescribe a form for the technician's certificate. Forms vary from province to province and, as the various decisions indicate, vary within individual provinces. This factor seems to have been overlooked in many of the decisions on this point. The issue is therefore not compliance with a prescribed form, which might add another layer of complexity. Rather, the issue is whether the Court is satisfied that the requirements of s. 258(1)(c)(ii) have been met, i.e., was each sample 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 15 minutes between the times when the samples were taken. When the Court is presented with no evidence, other than a Certificate as exists in this case, the presumption of identity comes into play. This is why the Court in Scott said two things. It rejected the majority opinion in Taylor and went on to say the trial judge "must have found as a fact that nothing with respect to the taking of the second sample had been done before 15 minutes had elapsed after the first sample had been taken" (see: Scott, supra at p. 519). The Court was not stating that there was something wrong with the Certificate. Quite the contrary. The Court stated it is always open to lead evidence to rebut a presumption, but absent that evidence, a Certificate, which states that a sample was taken at a particular time, is in acceptable form, and the presumption applies.

[24] Instructive to this appeal, at para. 40, the Saskatchewan Court of Appeal concluded:

For these reasons, I conclude the preferred interpretation is that a certificate stating samples were "taken" at certain times satisfies the requirements of s. 258(1)(c)(ii), without the necessity of stating the start and end times of when the accused began and finished providing a breath sample. A trial judge can rely upon such a Certificate, in the absence of proof to the contrary.

[25] This issue of technical defects on the certificate has been addressed extensively at all levels of courts, with the modern, general trend to move away from a rigid, technical approach. Recent jurisprudence provides that as long as the statutory requirements are met and there is no contradictory evidence, the certificate is admissible and the presumption of identity comes into play.

[26] In a somewhat dated case, in R. v Shadoff, at paras. 33-39 [^1], Ferguson J. had occasion to opine on the issue of the admissibility of the certificate:

If before the tendering of the certificate there is evidence adduced which conflicts with the "times" stated in the certificate, then the trial judge should not accept the certificate as admissible unless he is satisfied beyond a reasonable doubt that the time stated in the certificate is correct.

If the certificate is admissible then s. 258(1)(g) deems it to be "evidence of the facts alleged in the certificate". It should be noted that s. 258(1)(c) deems certain evidence to be "proof" whereas s. 258(1)(g) only makes an admissible certificate "evidence" of the facts alleged in the certificate. At the conclusion of the evidence at trial the Court must consider the precision of meaning of the statements in the certificate in order to determine the weight of this evidence. Where the Court finds that the terminology used in the certificate does not have sufficient clarity or meaning to prove a necessary fact beyond a reasonable doubt, then the evidence will be inadequate to prove the offence.

If the certificate states the time and date the samples were taken but at the bottom states a different date as the date on which the certificate was completed then this does not affect the admissibility of the certificate. The form of the certificate is not prescribed and there is no statutory requirement as to the date on which it must be completed or that the date of completion need be in any way related to the date on which the samples were taken. If the date on which the certificate is completed is different from the date stated for the taking of the samples, this might affect the weight of the evidence in the certificate in the particular circumstances of the case if there is other evidence which shows the difference in the dates might be material.

[27] In R. v Cabral (1982), 3 C.C.C. (3d) 287 (Ont. C.A.), the times on the certificate were written in an ambiguous manner. Defence counsel appealed from conviction based on the admissibility of the certificate. The Court of Appeal dismissed the appeal, finding that since the times were present on the certificate and could reasonably be interpreted in the correct manner, the certificate was therefore admissible.

[28] In R. v Chan, 2009 ONCJ 700, the certificate lacked the accused’s name on the line provided for that purpose, although he admitted to signing the bottom. The court followed what it called the “modern approach to breathalyzer offences” in determining that the certificate was admissible. The court found that any uncertainty as to whether the certificate related to the accused could be addressed in the weighing of all of the evidence.

[29] In R. v. Rebelo, - sitting as a summary conviction appeal judge - Durno J. addressed the overall issue of certificates particularly as they relate to establishing the blood alcohol content of a driver at the time of the offence. He stated at paras. 18-19:

As the certificate complied with s. 258(1)(g), it was admissible. The Certificate is evidence of the blood alcohol level at the station, with the stated times when the sample was taken. The issue of whether the first test was taken within two hours of the alleged offence, and as soon as practicable, does not arise on the issue of admissibility. The certificate on its face established the readings obtained at 9:00 a.m. and 9:37 p.m.

However, the certificate's admissibility does not establish the appellant's blood alcohol level at the time of the alleged offence. With respect to those who have dealt with the issue on the basis of admissibility of the certificate where the times are unambiguously noted, the issue is not the admissibility of the Certificate, but the use that can be made of it: R. v. Cardinal, 2001 ABQB 1000 contra. R. v. Shadoff, R. v. Gosby, supra.

[30] More importantly, for the purposes of this appeal, Durno J. discussed the less technical approach to the admissibility and use of certificates at paras. 36-40:

The use of Certificates of Analyses is an "evidentiary shortcut" given to the prosecution to facilitate proof of "over .80" offences, without the necessity of calling the technician to testify at every trial. It saves the technician having to come to court, and the police service the expense of paying for the attendance.

The Supreme Court of Canada has outlined the approach to be taken to the use of certificates: R. v. Noble (1978), 37 C.C.C. (2d) 193, dealing with the predecessor to s. 258:…

The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. 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.

While I accept that certificates are to be strictly construed, the weight of authorities since Noble has favored a pragmatic approach to certificates which contain omissions or typographical errors, provided the accused has not been prejudiced and the error is manifest having regard to all of the evidence.

Dealing with Mr. Calarco's submission, first, I am not persuaded that the admission of a Certificate of Analysis is an "all or nothing" approach as contended by the appellant. The weight of authorities canvassed above does not support the appellant. Admissibility is determined by s. 258(g). I am unable to conclude that the Crown is restricted to the certificate or viva voce evidence to establish the preconditions. I agree with the judgment In R. v. Cardinal, supra, that a portion of the certificate can be relied upon.

The evidence included in a certificate is not the only evidence the trier of fact may rely upon. It is after all of the evidence has been heard that the judge has to determine whether the preconditions to applying the presumption have been met. That includes an examination of the certificate and all other evidence introduced by the Crown or defence. Where there is no issue with regards to the entries on the certificate, the trial judge still has to determine after hearing from all the witnesses whether the preconditions apply.

[31] Of equal import was Durno J.’s conclusion at paras. 41-43:

While R. v. Wickert, supra, dealt with evidence which "completed" the certificate, I agree with LeSage J. that extrinsic evidence may be relied upon in a case in which a certificate has been introduced. I am also persuaded that the evidence to "correct" the certificate does not have to be given by the technician who prepared it, provided at the end of the trial the judge is satisfied the error is "manifest" and there is evidence to correct it.

Here, the certificate was served hours before the second test was stated to have been taken. The arresting officer watched the tests taken and gave the times. I do not agree with the appellant that permitting the "correction" as to the time results in there being no evidence of the readings. The trial judge was entitled to rely upon the certificate for the second reading.

The trial judge did not err in admitting the certificate and in finding the presumption applied.

[32] These instructive principles apply here with equal force. In the present case, there is only one date clearly stated on the certificate, which indicates that the samples were taken on the 26th day of March, 2016. The certificate is also not inaccurate. The date that appears on it is the correct date as verified by the viva voce evidence of Parmenter who served the certificate. Neither is the certificate incomplete or ambiguous. Although absent from one signature line at the bottom of the document, the date exists elsewhere on the form.

[33] By the trial judge’s comments at pages 10-11 of the October 19, 2017 transcript, it is clear to me that she was dealing with the issue of the certificate’s admissibility. The trial judge applied a strict approach to the admissibility issue and found that the certificate at issue was “inaccurate” and “defective” due to the missing date on the signature line.

[34] However, the content of the certificate at issue meets each of the statutory requirements set out in the Criminal Code. It is neither defective nor inadmissible.

[35] No signature and date of the qualified technician’s signature was required in compliance with the relevant provision in the Code.

[36] The certificate being admissible, the question then turns to the preconditions in applying the presumption.

[37] On the record in this case, there is no challenge to the relevant times or presumption. There is no evidence to the contrary. The respondent was not prejudiced. The Intoxilyzer Test Record does not reflect different times of the taking of the samples. Everything is in accordance with the statute to prove the prerequisites of 258(1)(c), in particular, the 15 minute time span between the tests and the first test being taken within two hours of the alleged offence.

Viva voce evidence can remedy a certificate

[38] Where the certificate meets the requirements of 258(1)(g), but there is clear error or ambiguity, is the court is able to rely on other evidence, including viva voce evidence, to amend or supplement the certificate?

[39] In R. v. Bykowski, 1980 ABCA 220, [1980] 23 A.R. 426, 54 C.C.C. (2d) 398 leave to appeal refused (1980), 54 C.C.C. (2d) 398n., the court held that the technician who prepared the certificate is not the only person who can "correct" the certificate with viva voce evidence.

[40] In this case, Parmenter gave viva voce evidence at trial as to the date the samples were taken. The trial judge in her decision found that this was not sufficient to remedy the fact that there was no date relating to when the officer actually signed the certificate.

[41] Section 258(1)(g) only requires the time where the samples were taken to be indicated. It does not specifically require that the date the officer signs the certificate be present.

[42] I agree with the Crown that the trial judge’s ruling that the certificate was flawed and inadmissible because it was missing a date in a particular place for the technician’s signature has no foundation in relation to the admissibility provided by s. 258(1)(g). The content, rather than the form, is what determines the admissibility of a breath technician certificate. Any issue with the date in the certificate would therefore have been remedied by Parmenter’s testimony as to when the samples were taken. However, even if the trial judge believed that it was defective, it was an error in law to rule that it could not be remedied by Parmenter’s testimony.

The Circumstances of the Trial Judge’s Ruling Regarding the Certificate

[43] As I have already found an error in law in relation to the trial judge’s conclusion regarding the defective nature of the certificate, for the sake of completeness, I turn to the issues of the timing, manner and results of her decision to exclude the breath certificate.

[44] The trial judge stated at pp. 10-11 of the transcript:

So here’s the difficulty from my perspective. In an unrepresented trial, the judge is the gatekeeper. I operate to ensure that the trial’s properly conducted, that only admissible evidence is permitted and that there’s trial fairness, not just for the defendant, for the Crown, as well. But at the same time, the Crown has an obligation to not win or lose, but to see that justice is done and to proceed in a manner that is appropriate in all the circumstances and only tendering evidence that they would be permitted to in law.

Had Mr. Kanlic been represented by counsel, someone may have noticed that the certificate was not signed by the officer who prepared it. It was signed, but it wasn’t dated - I correct myself. So the Crown opted to proceed on the certificate only, and no doubt would not have done so had the certificate not been complete. This isn’t a situation where assisted by counsel, someone said admit now, I object, we’ll argue it later. It appears to be what I could classify as an oversight.

I have no reason to believe that the Crown intentionally filed what is a defective certificate. The reason for the certificate is it takes away the obligation of the Crown to then call a witness to establish that which they may very well have been able to. It is a special presumption. There’s many courts that have considered it in different ways, but clearly an inaccurate certificate cannot be received nor relied upon by me pursuant to the Section 258 (1) (g) because it becomes evidence.

So again, although this has come in a unique way, and although it was admitted, it is an inaccurate certificate. It has a material absence, being the date - although it is signed by the officer, it is absent with respect to the actual day of the month and the month. It says dated this blank date of blank at Burlington OPP in the Province of Ontario.

[45] On the return date October 19th, 2017 Zivolak J. stated at p. 19 of the transcript:

I appreciate that this is not something that was raised by you, and you are unrepresented by counsel. But as I had started in my judgment as the gatekeeper of these matters, when something comes to my attention that is incorrect, I have to deal with it, no matter at what stage of the trial it comes to my attention.

[46] Continuing on pp. 2-4 of the October 23, 2017 transcript:

As indicated, the Crown filed the certificate pursuant to Section 258(1)(g) of the Criminal Code and was relying on a presumption in that section. At the conclusion of the trial, it was observed by me that the certificate was incomplete on its face. The spot where the date is to be filled out was blank, although there was a signature and a printed name, PC Westhead, on that line.

Dealing firstly with the issue of whether or not the certificate was complete on its face. The elements that are listed in Section 258 (1) (g) are covered to the extent possible in the certificate that’s available, but the case law is mixed on this point. Certainly any omissions or typographical errors may be capable of augmentation as referenced in the case of Rebelo, a decision of Justice Durno on an appeal in 2003. Certainly the concept that by filing the certificate it is akin to a “shortcut” and that therefore the certificate should be pristine, if it is the intention to rely on it solely. Rebelo speaks to the fact that the omission should not be material in nature.

Now, with respect to any additional evidence that was received, I’ve had the benefit now of listening to the DRD, as it’s referred to, the tape recording of the proceedings. There was no evidence from the officer regarding having witnessed the Intoxilyzer technician either complete the form, nor frankly was there anything that it was handed to him by the Intoxilyzer technician or how he received it. There was evidence that he was not present while the tests were being taken.

[47] While the trial judge addresses the relevant legal principles, with respect, she appears to have fallen into error in the application of those principles.

[48] First, in my opinion, the case law is not mixed on this point. From the appellate authorities, it is well settled that the impugned omission or defect on the face of the certificate is not material in nature and is admissible. With respect, the trial judge erred in this crucial assessment.

[49] Next, the trial judge raised the issue of the admissibility of the defective certificate for the first time during her final judgment. The Crown submits that the trial judge raised the issue without providing the Crown with notice and without providing the opportunity to call the breath technician as a witness.

[50] Any objection to the admissibility of evidence should be taken at the time the evidence is tendered. This proposition is axiomatic in the criminal trial process: R. v Kutynec (1992), 7 O.R. (3d) 277, 70 C.C.C. (3d) 289 (C.A.) at para. 13. The reason for this principle is trial fairness and efficiency for all parties involved: Kutynec at para 14. The Court of Appeal continued to explain that a judge has discretion to allow counsel to challenge evidence already received in limited circumstances “where the interests of justice warrant.”

[51] The Ontario Court of Appeal addressed a similar issue to the present case in R. v. Gundy, 2008 ONCA 284. In Gundy, the defence challenged the admissibility of the Intoxilyzer results on the basis that the device used was not an “approved screening device.” Defence counsel did so after the close of the Crown’s case. At para. 20, the court stated:

Over fifteen years ago, this court explained in clear terms that objection to the admissibility of evidence should be taken at the time the evidence is tendered. Finlayson J.A. said this in R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 294-95:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that 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), 14 C.C.C. (3d) 82 at p. 91, 28 M.V.R. 144 (P.E.I.S.C. App. Div.); Tse, "Charter Remedies: Procedural Issues" (1989), 69 C.R. (3d) 129 at pp. 136-40.

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.

[52] At para. 24, the Court of Appeal went on to discuss compliance with the rules as a represented or even as a self-represented litigant:

There is another problem with the procedure in this case. Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, S.I./97-133 , requires an accused to give notice of an application to exclude evidence under s. 24(2) of the Charter. That was not done in this case. The courts must be flexible in their application of Rule 30 and a trial judge will consider all the circumstances where an accused seeks to bring a Charter application in the middle of the trial: see the reasons of Hill J. in R. v. Tash for an excellent review of the factors to be considered; see also R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.). Further, there will be different considerations where the accused is unrepresented (see R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.)) or unforeseen events occur during the trial. However, the complete disregard of Rule 30 does not serve the interests of justice.

[53] The court ruled that it was an error in law for a trial judge to permit defence counsel to challenge the admissibility of evidence at the completion of the case. The court reasoned that allowing the challenge was prejudicial to the Crown and was not in the interests of justice. Of note are Rosenberg, J.A.’s comments found at para 23:

In my view, the trial judge erred in permitting the defence to challenge the admissibility of the certificate and the results of the Intoxilyzer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the Crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, Crown counsel would have had the option of calling additional evidence.

[54] Here, we do not have a Rule 30 violation, but the principles of fairness to all parties still prevail, especially in a case where there is a self-represented defendant. Yet, regardless of whether an eleventh-hour challenge of evidence comes from defence or from the trial judge in her exercise of discretion, the prejudice to the Crown and to the fairness of the trial process is the same.

[55] In this case, the trial judge commented at pp. 6-7 of her judgment:

Perhaps highlighting the challenges of dealing with a trial with a self-represented litigant, with the additional, I’ll call it wrinkle, but it’s in no means intended to be any form of disrespect to the quality of the interpreting that we’re having, which appears to be occurring on almost a simultaneous basis, but some of the additional challenges when an individual is unrepresented and is utilizing the services of an interpreter.

To re-open the trial now in my mind would be an unfairness to the defence as well, particularly given the time to trial issues that are additionally raised, the offence being from the end of March of 2016. We are now virtually at a 19 month period of time since the date of the offence.

Certainly, while there can be a concern that the Crown may have been able to prove their case had they observed that the certificate had a defect to it and was incomplete, to permit them to do that at the conclusion of the case, given the Jordan timeframe, together with all of the other equities as presented in the circumstance, in my mind, would be an unfairness to the defence in the circumstances, and accordingly I will not be re-opening the case at this point in time.

[56] While the trial judge mentioned “the concern”, in my view, she failed to adequately consider the Crown’s fair trial rights in the context of when the issue was raised by her, after the evidence and submissions were completed. As referenced in these Reasons, in fact, there was no concern or defect to have been noticed by the Crown during the trial, or at the time when the certificate was admitted into evidence.

[57] Secondarily, I pause briefly mention the judge’s reference to the Jordan framework in denying the Crown’s request. While the comments may be considered obiter, the Crown was denied procedural fairness by the judge’s reference to the Jordan timeframe. This question was never raised by the parties. Submissions on the potential s. 11(b) Charter issue ought to have been sought. Likewise, there was no reference or discussion about the transitional provisions in Jordan (that clearly applied to this case) in the potential analysis.

[58] The Crown concedes there is an obligation on a court to assist a self-represented accused through the trial process. Clearly, all level of courts must accept and appreciate that a trial judge has an increased duty to make inquiries relating to possible prejudice to the accused’s rights where, as in this case, the accused is self-represented. Indeed, that requires a delicate balancing exercise as the judge must remain neutral but also protect a self-represented accused’s Charter or fair trial right interests.

[59] However, the judge should not act or be seen to fall into the role of advocate for the accused. Ever mindful of Gundy, and while the self-represented accused must be afforded some assistance and fairness during the trial, it does not entitle the accused to an enhanced substantive benefit from such a situation - to the detriment of the Crown - as distinct from being represented by counsel.

[60] Any inquiries made on behalf of the accused must be made in a manner that is fair to the trial process as a whole: R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.), R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.) at para. 125. This principle includes fairness to the Crown. As Moldaver, J.A. (as he then was) stated in R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721, at para 45: “[the court] should not be promoting the strategy of ‘trial by ambush’.” Exercise of judicial discretion should involve serious consideration of prejudice to the prosecution. I am persuaded that this was not the case here.

[61] It is settled law that evidence that is admitted for the truth of its contents, such as the certificate of a qualified technician, should generally not be re-examined or re-litigated except in limited circumstances, and if so, the timing of any such reconsideration of its admissibility must be judicious. The court in Kutynec recognized this approach at para. 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, 4 C.R.R. (2d) 369 (Ont. C.A.), a judgment of the Court of Appeal for Ontario, released July 28, 1990, 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.

[62] Indeed, the preponderance of cases denote that the time to object to the admissibility of evidence is at the time it is tendered. In the present case, the trial judge appeared to be compelled to raise the issue in her judgment without any advance warning, objection or prior ruling. It may be that the trial judge considered that this was one of those limited circumstances warranting a re-examination of the admission of the exhibit.

[63] Nonetheless, I am persuaded that the trial judge’s re-assessment of the breath certificate evidence’s admissibility was not in the interests of justice. The trial judge’s decision to raise the issue of the admissibility of the certificate for the truth of its contents and to establish the presumption of identity and accuracy during her final judgment caused significant prejudice to the Crown. The breath technician was ready and able to testify during the Crown’s case. I accept that the Crown relied on the fact that the certificate had been admitted into evidence.

[64] The timing of the trial judge’s refusal to rely on the certificate therefore deprived the Crown of the opportunity to lead evidence relevant to the issue. The trial judge should have employed remedies or alternate courses of action available to the court in order to prevent considerable prejudice to the prosecution: R. v. Blom (2002), 61 O.R. (3d) 51, 167 C.C.C. (3d) 332 (C.A.).

[65] It is clear that the admission of the certificate was a crucial piece of evidence to the prosecution of the charge. The mere introduction of unfavourable or adverse evidence to the defence is not the legal test for prejudice.

[66] Certificate evidence may be corrected by oral evidence as long as the accused is not misled and his right to a fair trial is not compromised: R. v. Bykowski. In this case, with full disclosure, knowing the case to meet, and with no evidence to the contrary adduced by the defence; the respondent would not have been prejudiced in law by this remedy.

[67] Had the court wished to use its discretion to re-assess and reject what it erroneously believed to be defective evidence at this late stage in the trial, the Crown should have been afforded the opportunity to notice. Additionally, and more importantly, in the interests of fairness and justice the Crown should have been permitted to call the breath technician or another witness capable of remedying the certificate evidence and to correct any deficiency.

Conclusion:

[68] For the aforementioned reasons, I find a palpable or overriding error in law warranting appellate intervention. The appeal is allowed and the acquittal is set aside.

[69] As the error pertains to a question of law, and but for the error the respondent should have been found guilty, pursuant to s. 686(4)(b) of the Criminal Code, a conviction is hereby registered.

[70] The matter is remitted back to the trial court judge for a determination of the appropriate sentence. The Crown attorney shall make the appropriate arrangements to facilitate the respondent’s re-attendance before Zivolak J. in the Ontario Court of Justice. Should Kanlic fail to respond to the summons or re-attend court for sentencing, the Crown may request a warrant for his arrest.

A.J. Goodman, J.

Released: August 29, 2018

[^1]: The approach in Shadoff was not fully adopted by Durno J. in R. v. Rebelo, [2003] O.J. No. 4634.