Court File and Parties

Oshawa Court File No.: CR-18-14739 AP Date: 2020-02-14 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Shameer Ali, Defendant

Counsel: David Parke, for the Crown Jonathan Rosenthal and Adam Little, for the Defendant

Heard: August 29, 2019

Reasons for Judgment on Summary Conviction Appeal

Speyer J.

A. Introduction

[1] The consequences of two simple and preventable errors, the lack of a signature and two inverted digits, resulted in the acquittal of Mr. Ali on a charge of having care or control of a motor vehicle while his blood alcohol concentration (“BAC”) exceeded 80 milligrams of alcohol per 100 milliliters of blood. The Crown appeals against the acquittal. These reasons explain why the appeal is dismissed.

[2] Mr. Ali was charged with impaired care or control of a motor vehicle and with care or control of a motor vehicle while his BAC exceeded 80 milligrams of alcohol per 100 milliliters of blood. The trial judge acquitted Mr. Ali of the impaired charge, and that acquittal is not challenged on appeal. The trial judge acquitted Mr. Ali of the Over 80 charge because the Crown’s case failed for lack of proof after the trial judge concluded that defects in the certificate of a qualified technician (“the certificate”), relied on by the Crown to prove the defendant’s BAC, diminished its probative value. In the alternative, the trial judge excluded the certificate pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) because Mr. Ali’s right to counsel guaranteed by s. 10(b) of the Charter was infringed during the course of the investigation.

[3] Mr. Ali’s vehicle, while he was asleep in the driver’s seat, slowly rolled about 25 feet, onto a curb, and struck a hydro box. A bystander who saw this called the police and other emergency services. On arrival, Constable McLeod found Mr. Ali, still asleep, in the driver’s seat. Pursuant to her valid demand, he accompanied her to the police station, where he provided two samples of his breath that disclosed a BAC of 100 and 90 milligrams of alcohol per 100 milliliters of blood.

[4] The issues at trial were narrow. Counsel for Mr. Ali conceded that he had care or control of the vehicle. The disputed issues related to the admissibility and effect of the evidence tendered by the Crown to prove Mr. Ali’s BAC.

[5] The Crown appeals against the acquittal, arguing that the trial judge made two errors:

(1) The trial judge erred in considering the reliability of the certificate at the end of the trial, because failure to address issues with the certificate when it was tendered in evidence worked a procedural unfairness to the Crown; and,

(2) The trial judge erred in concluding that Mr. Ali’s right to counsel was infringed, and that therefore, the results of the breath tests should be excluded pursuant to s. 24(2) of the Charter.

[6] In order to succeed on the appeal, the Crown must succeed on both grounds of appeal, as the trial judge grounded the acquittal in two alternate lines of reasoning: 1) the unreliability of the certificate; and, 2) the exclusion of the certificate because of the s. 10(b) breach. As I will explain, I would dismiss the appeal because the manner in which the trial judge approached his consideration of the reliability of the certificate was not unfair to the Crown. It is therefore unnecessary for me to address the ground of appeal related to the exclusion of the certificate as a result of the s. 10(b) breach. Moreover, the extent of the constitutional obligation of the police to facilitate communication between detainees and their counsel of choice has been recently and thoroughly canvassed by the decisions of this court in R. v. Doobay, 2019 ONSC 7272 per Dawe J. at paras. 30-31, R. v. O’Shea, 2019 ONSC 1514, per Schreck J. at para. 42, and R. v. Ruscica, 2019 ONSC 2442, per McKelvey J., at para. 38.

B. The procedural fairness issue

a) Context

[7] In order to prove the results of the breath tests, the Crown at trial tendered a certificate of a qualified technician, identified in the certificate as “Doyle”, and identified at trial by Cst. McLeod as Constable Doyle. The certificate was not signed on the line provided for the qualified technician’s signature. It was signed by Mr. Ali and by Cst. McLeod when Cst. McLeod provided Mr. Ali with a copy of the document before he was released.

[8] When the certificate was tendered for admission as an exhibit during the evidence of Cst. McLeod, the trial judge invited defence counsel to state any objections to its admissibility, and afforded defence counsel an opportunity to cross-examine Cst. McLeod on a voir dire prior to making any such submissions. Defence counsel did not object to the admissibility of the certificate then, and it was received in evidence as an exhibit.

[9] The Crown relied exclusively on the certificate to prove the defendant’s BAC. The Crown could have called Constable Doyle to testify as to the results of the tests he conducted, but the Crown did not do so.

b) The reasons of the trial judge

[10] The trial judge identified the issue as “whether a signature from the qualified technician is a necessary precondition for triggering the evidentiary presumption in s. 258(1)(g)”.

[11] Section 258(1)(g) of the Criminal Code, as it was during the investigation and trial of the charges against the defendant, [1] provided that where samples of an accused’s breath have been taken pursuant to a demand made under s. 254(3), a certificate of a qualified technician stating various facts about the testing procedure, including the results of the breath tests, is evidence of the facts alleged in the certificate. Section 258(1)(g) permits the Crown to prove the results of breath tests by means of a certificate and dispenses with the need for the qualified technician to testify to prove the test results.

[12] The trial judge concluded that “the absence of a signature from the breath technician does deprive the certificate of the evidentiary presumption afforded by s. 258(1)(g)”. In coming to this conclusion, the trial judge did not the benefit of the decision of Harris J., sitting as a summary conviction appeal judge, in R. v. Moonessar, 2019 ONSC 340.

[13] The trial judge went on, in the alternative, to hold that the absence of a signature on the certificate could be material to an assessment of the reliability of the assertions in the certificate, but that those assertions may be found to be reliable where there is sufficient circumstantial evidence that the tests were conducted by a qualified technician using an approved instrument that was in proper working order. Applying that standard, the trial judge concluded that the certificate in this case did not provide reliable evidence and was insufficient to permit him to conclude that the tests were conducted by a qualified technician using an approved instrument that was in proper working order. Proof of these facts is essential to prove the defendant’s BAC, and thus the trial judge concluded that the BAC was not proven beyond a reasonable doubt.

c) The positions of the parties

[14] The Crown does not challenge the correctness of the trial judge’s alternative basis for declining to rely on the contents of the certificate. The Crown accepts that the trial judge was entitled to conclude that there was in this case insufficient evidence to permit him to conclude that the tests were conducted by a qualified technician using an approved instrument that was in proper working order because the statements in the certificate were not authenticated by means of a signature from the technician, and there was no other evidence that could fill that gap.

[15] The Crown argues that because the defence did not object to the admissibility of the certificate at the time that it was tendered and received in evidence, it could not subsequently be found to be inadmissible. The Crown asserts that to determine at the end of a trial that evidence ruled admissible during the course of the trial is not admissible is unfair to the Crown, because it has the right to know, before closing its case, whether the certificate is admissible so that, if the certificate is not admissible, the Crown can lead the evidence of the qualified technician who obtained the breath samples about the testing process and results in lieu of relying on the certificate. According to the Crown, the trial judge erred in failing to apply this well-established rule of fairness. The Crown expressly took the position that the appeal is not about the need for a signature on the certificate, but rather is about procedural fairness.

[16] It is the position of the defence that the Crown’s argument reflects a misunderstanding of the reasons of the trial judge. The defence asserts that the trial judge was aware that the defence is obliged to dispute the admissibility of evidence at the time it is tendered, and that the trial judge conducted the trial in accordance with that rule of procedural fairness. The fact that the certificate was admitted in evidence does not mean that it provided conclusive proof of what the Crown needed to prove. In other words, the trial judge was entitled to, and did, assess the evidentiary value of the certificate. The trial judge did not exclude from evidence the previously admitted certificate; he merely concluded that it was unreliable. Thus, the Crown’s concern about procedural fairness is unwarranted. The defence also took the position that it did not seek a ruling on this appeal as to whether the law requires a signature on the certificate. The defence seeks to uphold the trial judge’s decision about the certificate based only on his alternative reasoning that caused him to devalue the evidentiary weight of the certificate.

d) Analysis

[17] Given the positions of both parties that it is not necessary for me to decide whether, as a matter of law, an unsigned certificate is devoid of evidentiary value, and because that question has been answered in R. v. Moonessar, 2019 ONSC 340 by Harris J. sitting as a summary conviction appeal judge, I will not consider that issue further. Harris J. decided that if a signature was necessary, then it would have been expressly required by Parliament. The presence, or not, of the signature of the qualified technician, can affect the weight to be given to the statements contained in the certificate, but not the admissibility of the certificate. Harris J., at paras. 19-37, expressly disapproved of the reasoning and conclusion of the trial judge in this case on this point. Harris J.’s decision in Moonessar was released after the decision of the trial judge in this case, and therefore was not available to him.

[18] It remains to assess the merits of the Crown’s argument that the trial judge decided to exclude from evidence the certificate that had been previously admitted only at the conclusion of the evidence and submissions, and thus made an error of law that worked a procedural and prejudicial unfairness to the Crown.

[19] The Crown’s characterization of what the trial judge did is not borne out by a fair reading of the reasons for judgment of the trial judge and the context in which this issue unfolded at trial. At no point did the trial judge re-visit the issue of the admissibility of the certificate. Rather, having admitted the certificate, the trial judge proceeded at the conclusion of the case to assess the weight to be given to the contents of the certificate.

[20] Section 258(1)(g) of the Criminal Code, as it was at the material time, creates an evidentiary shortcut that streamlines Over 80 prosecutions by permitting the Crown to lead evidence of the results of breath tests by filing a certificate of the qualified technician who conducted the tests. Proceeding in this fashion dispenses with the need for the technician to give viva voce evidence. In short, s. 258(1)(g) is an exception to the rule against hearsay. In R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at paras. 17-20, Moldaver J. described the evidentiary nature of s. 258(1)(g) and its relationship to s. 258(1)(c):

[17] Section 258(1)(g) creates a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need for viva voce evidence.

[18] Section 258(1)(c) then provides two inferences that may be presumptively drawn from the certificate. The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused’s blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.

[19] The second inference, known as the presumption of identity, provides that the breath test results also identify the accused’s blood-alcohol concentration at the time of the alleged offence. This presumption avoids the need to call an expert toxicologist to interpret or “read-back” the breath readings with a view to identifying the accused’s blood-alcohol concentration at the time of the alleged offence.

[20] The three evidentiary shortcuts streamline the trial proceedings by permitting an accused’s blood-alcohol concentration at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis. To be clear, these shortcuts do not affect whether the accused’s breath readings are admissible or not. They affect only the manner of admission — specifically, whether the Crown must call two additional witnesses: one to verify the accuracy of the certificate and enter it as an exhibit, and the other to opine on the accused’s blood-alcohol concentration at the time of the alleged offence — matters which have no connection to the lawfulness of the breath demand. [Emphasis added.]

[21] The statutory scheme allows the prosecution to prove certain facts by the admission of hearsay evidence, which evidence then permits specified inferences to be drawn from those facts. The statutory scheme provides that the specified inferences may be presumptively drawn from the facts set out in the certificate. But the statutory scheme does not provide that the certificate provides conclusive evidence of the facts contained in it. In other words, admission of the certificate does not demand that the evidence it provides be accepted by the trial judge. In this regard, it is no different than any other sort of admissible hearsay evidence.

[22] Section 25(1) of the Interpretation Act, RSC 1970, c. I-23, as amended, provides that “[w]here an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.” This provision confirms that there is a difference between the admissibility of a document, and its evidentiary effect.

[23] Ordinarily, where the certificate is properly prepared by the officer who conducts the breath tests, there is no issue about the reliability of the statements contained in the certificate. But errors in the preparation of the certificate that demonstrate carelessness in its preparation can provide a basis upon which to doubt the reliability of the factual assertions made in the document. Evidence of careless preparation can amount to evidence to the contrary for the purposes of s. 25(1) of the Interpretation Act.

[24] The trial judge was mindful of the difference between the admissibility of the certificate, and the separate question of its evidentiary value, or weight. This was clearly demonstrated when the Crown asked the certificate to be marked as an exhibit during the evidence in chief of Cst. McLeod. The trial judge asked defence counsel for his position, and counsel responded, “Subject to argument, it is on consent”. The trial judge sought explication of this ambiguous statement. The trial judge said:

I am at a loss other than a Charter argument. [2] If you want to state your objection as to deficient evidentiary foundation I would say you have to do it now because otherwise I am going to find that the statutory preconditions are met and the certificate is admissible. … [A]s far as the conditions for admissibility of the certificate, I would be content to have you cross-examine this witness if you think the statutory preconditions have not been met. … So if there is something else, I will put it bluntly, speak now or forever hold your peace.

[25] Counsel for the defendant at trial did not identify any issue with respect to the admissibility of the certificate.

[26] When defence counsel sought, at the conclusion of the case, to argue that the certificate should not have been admitted in evidence because the Crown had not proven that Mr. Ali was served with a true copy of it, the trial judge questioned the propriety of raising that issue at the close of the case, rather than when the certificate was tendered in evidence by the Crown, and defence counsel then abandoned that late-breaking challenge to the admissibility of the certificate.

[27] The nature of the trial judge’s concern about the effect of the missing signature was most clearly stated in his articulation of the issues in the case, at para. 26 of his reasons for judgment: “in view of the missing signature on the [certificate] that was entered as an exhibit at trial, is the Certificate deprived of any or all of its evidentiary value?” The Crown’s assertion that the trial judge re-visited his mid-trial decision to admit the certificate in evidence, and that at the conclusion of the case he excluded it as an item of evidence, is simply not supported by a fair reading of the reasons for judgment.

[28] The issue in this case, as in Moonessar, was not the admissibility of the certificate, but rather the use to be made of it. The trial judge determined that statements in the certificate were insufficiently reliable to establish the preconditions that trigger the inferences created by s. 258(1)(c), the presumption of identity and the presumption of accuracy. The Crown has not challenged the trial judge’s conclusion about the reliability of the certificate.

[29] Having concluded that the trial judge did not do that which the Crown alleges, there is no basis for the Crown’s complaint that it was unfairly prejudiced in the conduct of its case. The Crown was not entitled to assume, merely because the certificate was admitted in evidence, that it necessarily proved that which the Crown needed it to prove. There was an obvious problem with the certificate in this case – a problem that the Crown could have spotted and could have addressed by calling the qualified technician to provide viva voce evidence about the testing procedure and results. Alternatively, the Crown could have tendered the Intoxilyzer 8000C test result printout, a document that Cst. McLeod testified she would have obtained from the qualified technician, and which would, if it was signed by the technician and otherwise complied with s. 258(1)(f.1), have been admissible in evidence, and could have afforded confirmation of some of the facts contained in the certificate, as occurred in Moonessar.

[30] This ground of appeal fails, and consequently the appeal is dismissed.

The Honourable Justice J. Speyer

Released: February 14, 2020

Footnotes

[1] The provisions of the Criminal Code relating to offences involving conveyances, including the impaired operation and over 80 offences, were significantly amended by Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 2018, c. 21. These provisions may now be found in part VIII.1 of the Criminal Code, ss. 320.11 to 320.4.

[2] There was a Charter issue in this case. The “blended voir dire” procedure had been adopted, thus reserving the s. 10(b) issue for argument and decision at the conclusion of the evidence.