COURT FILE NO.: CR-20-10089-00AP
DATE: 2022-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
Respondent
– and –
Marcos Hepfner
Appellant
David Parke and Benjamin Schnell, for the Crown
Adam Little, for the appellant
HEARD: February 25 and April 13, 2022
THE HONOURABLE MR. JUSTICE I.R. SMITH
Introduction
[1] Following a trial in the Ontario Court of Justice before Rabley J., the appellant was convicted of the offence commonly known as “Over 80.” The appellant challenges that conviction and raises six grounds of appeal, which I summarize as follows (in the order they appear in the appellant’s factum and supplementary factum):
That the trial judge erred by relying on hearsay evidence from the breath technician to establish the preconditions for the presumption of accuracy contained in section 320.31 of the Criminal Code, R.S.C. 1985, Ch. C-46, as am.
That the trial judge erred by relying on the presumption of identity contained in the now repealed section 258(1)(c) of the Code.
That the trial judge erred by finding that the breath samples were taken as soon as practicable in circumstances where the appellant had not invoked his right to counsel but was nevertheless put in contact with duty counsel before the samples were taken.
That the trial judge erred by finding that the arresting officer had reasonable grounds to arrest the appellant given that the officer did not advert to the reliability of the approved screening device or take any steps to check its reliability.
That the Crown failed to disclose a certificate of an analyst pursuant to section 320.31(1) of the Code and should therefore have been precluded from relying on the presumption of accuracy.
That the trial judge erred by finding that the Crown had proved beyond a reasonable doubt that the qualified technician conducted a system calibration check as required by section 320.31(1)(a) of the Code.
[2] For the reasons that follow, the appeal is dismissed.
Background facts
[3] The appellant was pulled over by officers of the Waterloo Regional Police Service (“WRPS”) because he had been driving with his headlights off. It was 2:05 a.m. on December 30, 2017. Constable Chris Rose spoke to the appellant. The appellant said that he had had two drinks earlier in the evening, and was then observed outside his vehicle swaying, from which Cst. Rose formed grounds to believe that the appellant had been drinking. Cst. Rose read the standard demand that the appellant provide a sample of his breath into an approved screening device.
[4] Constable Donnelly, who had been operating another cruiser and who had also stopped when the appellant was pulled over, provided an approved screening device to Cst. Rose, who had the appellant blow into it. The appellant’s first attempt to blow did not succeed, but on the second attempt he provided an adequate sample and registered a “fail” on the device.
[5] The appellant was arrested at 2:12 a.m. and placed in the back of Cst. Rose’s cruiser. At 2:18 a.m. he was read his right to counsel. He said that he understood his right but did not answer Cst. Rose when asked if he wished to speak with a lawyer. When asked by Cst. Rose how much the appellant had had to drink, the appellant replied “three beers.”
[6] At 2:22 a.m., Cst. Rose read the standard breath demand to the appellant. The appellant was then transported to a police detachment, arriving at 2:50 a.m. In transit, the appellant again did not answer when he was asked if he wished to speak with a lawyer. At 3:03 a.m., Cst. Rose called for duty counsel. At 3:08 a.m., Cst. Rose provided his grounds to the breath technician. At 3:12 a.m., duty counsel called and the appellant spoke with duty counsel until 3:23 a.m.
[7] At 3:31 a.m., the appellant provided his first breath sample, which returned a result of 200 mg of alcohol in 100 mL of blood. The second sample, received at 3:52 a.m., returned a result of 189 mg of alcohol in 100 mL of blood.
Ground #1 – The presumption of accuracy
[8] Section 320.31 of the Code provides that, if certain preconditions are met, the results of a breath test conducted with an approved instrument are presumed to be accurate. In this case, the appellant argues that the Crown did not prove the first of the preconditions, which reads as follows:
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst.
[9] It is the very last part of this provision which in issue here. The appellant says that the Crown failed to prove that the standard was “certified by an analyst.”
[10] The qualified technician testified that he conducted two calibration checks with the approved instrument, providing results of 98 and 96 mg of alcohol in 100 mL of blood, respectively. He also conducted other tests which satisfied him that the machine was operating properly.
[11] Although the Crown did not tender the certificate of analysis with respect to the approved instrument, the qualified technician testified that a certificate was posted on the wall above the approved instrument. He testified in-chief that the certificate indicated the “target value” of the alcohol standard was 100 mg of alcohol.
[12] In cross-examination, the qualified technician agreed that he was likely mistaken and that the certificate did not refer to the target value. He said, however, that he was aware from his training that 100 mg was the baseline target value used by the Centre for Forensic Sciences (“CFS”) and that, in his experience, the baseline target value had always been 100 mg. He added that it is also printed on the label on the bottle for the standard solution, which is certified by the CFS.
[13] The trial judge found that he was satisfied that the result of the calibration check was within 10% of the target value (which he found to 100 mg of alcohol in 100 mL of blood) of an alcohol standard that had been certified by an analyst. He accepted the evidence of the qualified technician, which was based on his training and experience, that this was the target value determined by the CFS, whether or not that value was on the certificate posted on the wall.
[14] The appellant argues that the evidence of the qualified technician respecting the certificate of analysis and the target value are inadmissible hearsay. He argues that to prove the precondition to the presumption of accuracy set out in s. 320.31(1)(a), the Crown must file the relevant certificate of analysis or call the viva voce evidence of that analyst.
[15] In this regard, the appellant swims against the current of prior authority (see, for example, the following cases from Ontario: Regina v. Bahman, 2020 ONSC 638, Regina v. Baboolall, 2019 ONCJ 192, Regina v. Dulal, 2021 ONSC 2798, Regina v. Does, 2019 ONCJ 233, Regina v. Porchetta, 2019 ONCJ 244, affirmed 2021 ONSC 1084, Regina v. McAlorum, 2019 ONCJ 282, Regina v. Brar, 2019 ONCJ 399, Regina v. McRae, 2019 ONCJ 310). Most recently, Chief Justice Bauman, writing for the Court of Appeal of Yukon in Regina v. MacDonald, 2022 YKCA 7, concluded that hearsay evidence of the certification by an analyst demanded by s. 320.31(1)(a) is admissible (in that case, the hearsay was contained in the certificate of the qualified technician). In so doing, the court in MacDonald addressed directly the case upon which the appellant places the greatest weight, the judgment of the Alberta Court of Appeal in Regina v. Goldson, 2021 ABCA 193. Respectfully, I agree with the analysis of Chief Justice Bauman.
[16] Chief Justice Bauman began her analysis by noting that, under the predecessor legislation, the Crown could rely on the certificate or the evidence of the qualified technician stating as a fact that the technician ascertained that the approved instrument was working by means of an alcohol standard “suitable for use with an approved instrument” and that the Crown was not also required to call the evidence of the analyst (or present that person’s certificate) who determined the suitability of the alcohol standard (see MacDonald, supra, at paras 28 – 41).
[17] Turning to the present version of the legislation, Chief Justice Bauman asked, rhetorically, “why would Parliament be seen to be adding an evidentiary requirement on the Crown to prove the reliability of the analyst who certified it” (para. 44) given that the overarching purpose of the drinking and driving provisions is “to streamline the trial process in this heavily litigated and complex area of the law … to avoid needless delays in drinking and driving proceedings” (Regina v. Alex, 2017 SCC 37, at paras 35 – 36)?
[18] The analysis which follows in MacDonald demonstrates that the new legislation, rather than representing a significant shift in the law (as the court in Goldson concluded), includes “innocuous” changes which merely simplify the shortcuts available to the Crown, doing away with the evidentiary distinctions that formerly existed between evidence presented by certificate and evidence presented by viva voce testimony and providing for a single standard of admissibility for certificates (see paras. 63 – 67). Accordingly, the court in MacDonald concluded, it is “not necessary for the Crown to go beyond the qualified technician’s certificate or oral evidence as to the fact of the alcohol standard’s certification” (MacDonald, para. 75).
[19] In Goldson, the court accepted the argument, also made by the appellant in this case, that the inclusion of proof of the system blank test and system calibration check as a precondition for reliance on the presumption of accuracy signalled a significant change in the Parliament’s intention. In MacDonald, Chief Justice Bauman rejected this proposition, reasoning as follows:
[57] In my view, it has always been the case that utilizing only an alcohol standard “suitable for use” has been a necessary condition to the admission of the qualified technician’s certificate, or a practically necessary condition when proceeding by way of a qualified technician’s oral evidence in support of the reliability of the test results.
[58] As for the certificate, the predecessor scheme always required the statement as to suitability. As for the oral evidence of a qualified technician, if the qualified technician were asked about but could not swear to the alcohol standard’s suitability for use, the evidence of the analysis would fall short of grounding the presumption because of concerns about the reliability of the technician’s evidence. Quite simply there would be no assurance that it was the output of an approved instrument operated in an appropriate manner.
[59] Before the 2018 Amending Act, asserting the suitability of the sample was only necessary at first instance if the Crown sought to establish the preconditions to the presumption of accuracy by way of the certificate of the qualified technician. Since the 2018 Amending Act, that the qualified technician used a certified alcohol standard is something that must be established in every case in which the Crown seeks to take advantage of the presumption of accuracy contained in s. 320.31(1). The question is whether this structural change makes a difference as to whether the qualified technician may assert that fact in their certificate.
[60] Respectfully, the fact that use of a certified alcohol standard has been made a precondition to reliance on the presumption of accuracy seems to be a specious reason to interpret the new scheme as imposing a new evidentiary requirement on the Crown. Although arguably it would not be terribly onerous for the Crown to provide certificate evidence from the analyst in every case, this was never a feature of the scheme in the past according to the guiding jurisprudence and runs counter to the aim and object of that scheme and the new one.
[61] The error of the Court in Goldson was to read the addition of the certification of the alcohol standard as a precondition to be a “significant change.” That understanding fails to consider the scheme (or the predecessor scheme) as a whole.
[20] Considering the scheme of the Code as a whole, leads to the conclusions set out above. That is, that the Crown need not go beyond the qualified technician’s certificate or oral evidence as to the fact of the alcohol standard’s certification.
[21] Accordingly, in this case, the oral evidence of the qualified technician respecting the precondition found in s. 320.31(a) was admissible and, as the trial judge accepted that oral evidence, this ground of appeal must fail.
Ground #2 – The presumption of identity
[22] The appellant argues that Justice Rabley erred by concluding that the Crown could rely on the presumption of identity contained in section 258(1)(c) of the Code, which section has been repealed.
[23] This case is a “transitional case” where the date of the offence pre-dated the coming into force of the current drinking and driving provisions on December 18, 2018, and where the date of the trial post-dated December 18, 2018. The act by which the amendments to the Code were made did not explicitly state whether s. 258(1)(c) was to continue to operate for transitional cases.
[24] This is not the first time this argument has been advanced. While it found favour in Regina v Shaikh, 2019 ONCJ 157 and Regina v. Flores-Vigil, 2019 ONCJ 192, those cases have not been followed by other courts, most importantly, for present purposes, by this court. Justice Rabley relied primarily on the judgment of Regina v. Fram, [2019] O.J. No. 2276 (O.C.J.), where Justice Douglas rejected the position being advanced by the appellant. Fram has been followed or referred to with approval repeatedly. In this court, in Regina v. Persaud, 2020 ONSC 3413, Akhtar J. considered the issue on a summary conviction appeal and found that the Crown could resort to the presumption of identity in section 258(1)(c) in transitional cases. Similar conclusions were drawn by Charney J. in Regina v. Sikora, 2021 ONSC 5869 and by Dawson J. in Regina v. Raswan, 2022 ONSC 825.
[25] In Regina v. Pawson, 2021 BCCA 22, at para. 29, the British Columbia Court of Appeal adopted the reasoning of Akhtar J. in Persaud. Like Frankel J.A. in Pawson, I see no need to spill further “judicial ink” on this issue. Instead, I adopt the persuasive reasoning of my colleagues in Persaud, Sikora and Raswan.
[26] Accordingly, this ground of appeal fails.
Ground #3 – As soon as practicable
[27] As set out earlier in these reasons, the appellant was arrested at 2:12 a.m. and advised of his right to counsel at 2:18 a.m. He said that he understood his right but did not answer when asked if he wished to speak with a lawyer. Asked the same question in the police cruiser on the way to the station, he again did not answer.
[28] Cst. Rose testified that the appellant was belligerent and rude, at one point spitting in the face of one of the officers. He said that he took the appellant’s silence respecting contact with counsel as an indication that the appellant was declining to speak to counsel.
[29] The officers and the appellant arrived at the detachment at 2:50 a.m. The appellant was booked and then placed in an interview room at 3:00 a.m. At 3:03 a.m., Cst. Rose called for duty counsel, who returned that call at 3:12 a.m. The appellant then spoke with duty counsel until 3:23 a.m. and was presented to the breath technician, Cst. Trafford, at 3:25 a.m. Thereafter, the appellant provided samples of his breath at 3:31 and 3:52 a.m.
[30] Cst. Rose provided Cst. Trafford with his grounds at 3:08 a.m. while he was waiting for duty counsel to call back. Cst. Trafford testified that he was already at the detachment when the appellant was arrested. The trial judge found that Cst. Trafford would have been in a position to receive the appellant by 3:00 a.m. and to have received Cst. Rose’s grounds by 3:02 a.m. but for the effort to afford the appellant the opportunity to consult with counsel.
[31] On this factual foundation, the appellant rests his argument that the breath tests were not taken “as soon as practicable after the time when offence was alleged to have been committed” pursuant to s. 258(1)(c)(ii) of the Code. He takes the position that at no point on the evening in question did he invoke his right to counsel and, indeed, the arresting officer believed that the appellant was declining the opportunity to speak to counsel. Accordingly, the delay occasioned by Cst. Rose’s decision to contact duty counsel (which the trial judge fixed at 23 minutes) and to have the appellant speak with duty counsel was not reasonable and resulted in a failure to comply with s. 258(1)(c)(ii).
[32] Justice Rabley rejected this argument. He made reference to the judgment in Regina v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont.C.A.) where Rosenberg J.A. wrote that the “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.” As Rabley J. noted, the factors for assessing the reasonableness of any delay caused by connecting the accused with counsel were usefully distilled in Regina v. Davidson (2005), 23 M.V.R. (5th) 77 (Ont. S.C.J.) and Regina v. Barrick (1998), 36 M.V.R. (3d) 258 (Ont. S.C.J.).
[33] Of significance for this case, the factors summarized by Dawson J. in Davidson indicate that where the accused has not provided a clear and unequivocal waiver of the right to counsel it will be reasonable for the police to contact duty counsel to ensure that they cannot be criticized for failing to respect the accused’s right under s. 10(b) of the Charter (see Davidson, supra, at para. 21).
[34] Justice Rabley found in this case that there was no clear and unequivocal waiver, finding that the arresting officer’s opinion that the appellant had waived was not dispositive of the issue. Indeed, Rabley J. disagreed with the opinion of the officer, finding that, without more, the fact that Cst. Rose “was not getting answers to his questions” did not mean that the appellant was waiving his right to a lawyer. Therefore, he found, it was reasonable for the police to contact duty counsel given the uncertainty caused by the appellant’s silence. Rabley J. noted that the appellant took full advantage of the opportunity to speak with duty counsel, to whom he spoke for 11 minutes. The trial judge found that this was “a clear indication that [the appellant] wished to speak with a lawyer and get meaningful advice at this time.”
[35] In all the circumstances, according to the trial judge, the delay occasioned by contacting counsel was reasonable and, therefore, the breath tests were taken as soon as practicable.
[36] I see no error in the trial judge’s reasoning. Before me, the appellant argues, as he did before the trial judge, that the conduct of the police was not reasonable because the appellant never invoked his right to counsel. Therefore, so it is argued, the issue of whether the appellant waived his right – which is the first factor in the Davidson analysis – is not reached in this case. In making this argument, the appellant relies on the judgment of the Court of Appeal in Regina v. Owens, 2015 ONCA 652, where Hourigan J.A. wrote (at para. 26) that “the issue of waiver arises only if a detainee first asserts the right.”
[37] Like the trial judge, I fail to see the relevance of the judgment of Owens in this case. At issue in Owens was whether the accused’s 10(b) right had been violated, not whether breath tests were taken as soon as practicable. In that case, the police fulfilled the informational component of the 10(b) right. Having been provided the required information, Mr. Owens was found to have failed to invoke his right to consult counsel. This failure relieved the police of any obligation to carry out the implementational component of the 10(b) right. The issue of the accused’s waiver of the implementation of the right simply never arose because he had not invoked the right in the first place.
[38] In the present case, by contrast, the issue is not whether the police failed in their duty to assist a detained person to contact counsel, the issue is whether they acted reasonably in facilitating contact with counsel where the accused stood silent. In my view, the judgment in Owens does not alter the analysis set out in Davidson. The question is, what is reasonable police conduct when the desire of the accused respecting the right to counsel is unknown or ambiguous, as the trial judge found that it was in this case.
[39] The appellant concedes in his factum that the police “may act prudently in contacting counsel even where there is no direct request,” but argues that this will not be the case in drinking and driving cases where Parliament has put a premium on taking breath tests promptly. Again, the issue is the reasonableness of the conduct of the police. To underscore this point, he refers to two cases in which judges have treated the silence of the accused in a manner different than Justice Rabley did in this case.
[40] In the first of these cases, Regina v Shin, 2007 ONCJ 20, the trial judge found that the accused’s silence on the issue of consulting counsel was not ambiguous, it was “the absence of an indicator one way or another” (see, para. 29). He conducted an exhaustive examination of the evidence and found as a fact that the accused positively “did not want to speak to duty counsel” (para. 39, emphasis added). By contrast, Justice Rabley found as a fact in this case that Mr. Hepfner did want to speak to duty counsel.
[41] The second case, Regina v. MacCoubrey, 2015 ONSC 3339, is not a case of silence at all. The trial judge found as a fact, on the basis of what the accused said, that the accused did not think he needed counsel. There was neither silence nor ambiguity. These findings of fact were respected on the Crown’s unsuccessful summary conviction appeal.
[42] Neither of these cases stands for the proposition that silence cannot be interpreted as equivocal conduct on the part of a detained person, nor that silence will always mean that the police act unreasonably by putting the silent accused in touch with duty counsel before breath tests are taken. On the contrary, both cases turn on findings of fact made by the trial judges in those cases. Here, the trial judge has found, on the facts and circumstances before him, that the appellant’s silence was equivocal, that the appellant wanted to speak to counsel, and that the police acted reasonably in putting him in contact with counsel. These findings are entitled to deference on appeal.
[43] As I have said, I find no error in the reasoning of the trial judge on this issue. This ground of appeal fails.
Ground #4 – Reasonable and probable grounds for arrest
[44] At the time Cst. Rose pulled over the appellant he did not have an approved screening device with him, but Cst. Donnelly, who had been driving another cruiser, did. Cst. Rose testified that he believed the device was in working order. The device performed a self-test when he turned it on prior to obtaining a sample from the appellant. That test indicated that the device was working properly. The device also signalled that it was “Ready”, from which the officer formed the opinion that “it was in good working order at that time.”
[45] Cst. Rose did not, however, consider when the device had last been calibrated before he had the appellant provide his breath sample into the approved screening device. He did know, though, that officers of the WRPS test all the Service’s approved screening devices every Sunday morning. After the test had been administered to the appellant, Cst. Rose checked the calibration sticker on the back of the device which did show that it had been calibrated the previous Sunday, six days before the appellant’s arrest.
[46] From this collection of facts, the appellant argued before Justice Rabley and again on appeal that Cst. Rose lacked reasonable and probable grounds to arrest the appellant because the officer did not know whether the approved screening device was working properly because he did not know before the test was administered when it had last been calibrated. In the absence of such knowledge, it is argued, Cst. Rose could not reasonably rely on the failed roadside test and he therefore violated the appellants ss. 8 and 9 Charter rights.
[47] Justice Rabley did not accept this argument, finding as follows respecting the evidence:
The evidence in this case is compelling in that Constable Rose was an experienced officer who understood the workings of the ASD, believed the device had been calibrated within the preceding week and was functioning properly. The officer was aware of how the instrument worked and what the results meant.
In my view, the Crown has established that Constable Rose had objectively reasonable grounds to believe that the ASD that he used on the evening in question was in good working order.
[48] In coming to these conclusions, Rabley J. stood on a solid foundation in the law. Among other authorities, the trial judge referred to the judgment of Durno J. in Regina v. Mastromartino (2004), 2004 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.) as follows (at para. 79):
An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a “fail” result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly [citations omitted].
[49] In addition to the cases he did cite, the trial judge might also have relied on any number of other authorities to the same effect – including judgments of the Court of Appeal (see: Regina v. Notaro, 2018 ONCA 449, at paras. 25, 34 and 40; Regina v. Jennings, 2018 ONCA 260, at para. 17).
[50] The trial judge has made no error. He made findings of fact which support his conclusion on this issue. Those findings were reasonable and are firmly anchored in the evidence. He applied those findings correctly to the applicable law. This ground of appeal must fail.
Ground #5 – Disclosure of the certificate of analysis
[51] Section 320.34(1)(e) of the Code, provides as follows:
320.34(1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1) to (c) have been met, namely:
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.
[52] The appellant argues, for the first time on appeal, that the Crown failed to comply with this disclosure requirement and that its failure to do so should have disentitled the Crown from relying on the presumption of accuracy in section 320.31 given that Parliament must have intended sections 320.31 and 320.34 to function jointly. He says that “together, the two provisions ensure that the accused has an opportunity to determine in advance of the trial whether the preconditions necessary to trigger the [presumption of accuracy] are met in their case, and if they are not, to contest the precondition by way of cross-examination” [emphasis in the original].
[53] At trial, counsel for the appellant (also counsel on this appeal) made submissions in which he advised the trial judge that no certificate of an analyst had been disclosed to him. However, he sought no remedy from Rabley J. Moreover, it seems that he was content to proceed in the absence of that certificate.
[54] Among other things, counsel for the appellant said as follows: “So, first, I have no disclosure, nor am I seeking at this point anything to do with the certificate of an analyst” [emphasis added]. Counsel said only that “there’s going to be arguments with respect to it not being admissible” if the Crown attempted to tender the certificate as evidence. Counsel also advised Rabley J. that he may object to Cst. Rose referring to the certificate because it was hearsay, the issue dealt with in the first ground of appeal, above. Crown counsel at trial indicated that she did not intend to lead the certificate of an analyst and that she was prepared to deal with the hearsay argument.
[55] I am inclined to agree with the Crown that this ground is not properly raised for the first time before me. Although the submissions of counsel will often be an important part of the record with respect to disclosure issues, it is far from clear that I have a satisfactory record upon which to decide this issue in this case. The Crown had no opportunity to respond at trial either with evidence or with informed submissions to the issue now raised, which might have illuminated issues such as why disclosure had not been made and whether the appellant had diligently pursued disclosure, among others. Moreover, the trial judge had no opportunity to consider the issue, to rule on it, and to provide reasons for that ruling. In short, there is an incomplete record for me to review.
[56] Further, based on counsel’s submissions at trial, I do not believe that the appellant has met his onus to satisfy me that the failure to raise the issue at trial was not a tactical decision. He was aware of the non-disclosure. He was prepared to raise a preliminary objection because of that non-disclosure. He was prepared to argue and did argue that Cst. Rose could not rely on the “hearsay” contained in the certificate, especially given that the certificate was not in evidence. And he told the trial judge that he was not “seeking at this point anything to do with the certificate of an analyst.” In light of these submissions, I am not convinced that there was no tactical reason for failing to raise at trial the issue raised in this ground of appeal.
[57] For these reasons alone, the lack of a proper record and the failure to establish that the lack of objection at trial was not tactical, this ground of appeal must fail (see, Regina v. Reid, 2016 ONCA 524, para. 43).
[58] In any case, I am unconvinced by the appellant’s argument on its merits. As Crown counsel submits, our courts have developed a robust method of dealing with alleged failures of disclosure, where non-disclosure is dealt with as a Charter issue and remedies are tailored to the circumstances of each individual case. Here, because the alleged failure to disclose was not raised before the trial judge, the opportunity to craft a remedy on a proper record was lost. Again, whether that failure to object was tactical is relevant under the controlling authorities respecting considerations of non-disclosure on appeal (see Regina v. Dixon (1998), 1998 805 (SCC), 122 C.C.C. (3d) 1 (S.C.C.), at para. 55). As I have already said, I am not convinced that the failure to object more fully was not tactical.
[59] But the appellant says that because of the “joint functioning” of sections 320.31 and 320.34, the remedy for non-disclosure is mandated by the Code. Accordingly, the tailoring usually engaged in to fashion remedies for non-disclosure is unnecessary. In other words, if the Crown fails to comply with section 320.34, it is automatically precluded from relying on the presumption of accuracy in section 320.31.
[60] In making this argument, the appellant relies on the reasoning in Regina v. Kvasnak, 2021 SKQB 283, at paras. 49 – 57. There, Crooks J. interpreted the disclosure requirements in section 320.34 as the appellant does – as preconditions to the reliance on the presumption of accuracy. Justice Crooks further found that the trial judge’s chosen remedy for non-disclosure, an adjournment, “overlooked whether the Crown had met the legislated requirements entitling them to rely on the presumption of accuracy” (see para. 56). She concluded as follows (at para. 57):
The requirement to disclose the certificate of analyst, along with the other disclosure requirements under ss. 320.34(1), is a prerequisite to the Crown relying on the presumption of accuracy. By failing to disclose the certificate of an analyst, pursuant to ss. 320.34(1)(e) of the Criminal Code, the Crown failed to establish the requirements set out in ss. 320.31(1)(a), namely that the alcohol standard was certified by an analyst.
[61] I find myself in respectful disagreement with this reasoning and do not accept the appellant’s argument.
[62] Section 320.34 provides for no remedy for non-disclosure. Section 320.31 does not include compliance with section 320.34 as one of the preconditions for the Crown’s ability to rely on the presumption of accuracy. Had Parliament intended the joint functioning assumed by the appellant, it would have been a straightforward thing for Parliament to have been explicit on this point, either by providing for that remedy in section 320.34 or by including compliance with section 320.34 in the list of preconditions to reliance on the presumption of accuracy in section 320.31. It did neither.
[63] In the absence of such express direction in the statute, there is in my opinion no reason to conclude that Crown failures to comply with the disclosure requirements in section 320.34 cannot be dealt with in the same way as any other failure to disclose, that is, in context and with a remedy that is crafted by the trial judge in response to a satisfactory record on a Charter motion brought by the accused. In slightly different circumstances, Justice Moldaver made a similar point in Regina v. Alex, supra, at para. 43:
This role that s. 8 [of the Charter] fulfills in relation to unlawful breath demands is consistent with the approach taken when the police fail to comply with the requirements of other statutory provisions, governing their authority. For example, non-compliance with the statutory search warrant requirements does not result in automatic loss of evidence – rather, it is subject to challenge under s. 8 of the Charter [citations omitted].
[64] For these reasons, I do not give effect to this ground of appeal.
Ground #6 – Proof of the system calibration check
[65] Last, the appellant argues that the Crown failed to establish at trial that the breath technician conducted a system calibration check the result of which was within 10% of the target value of an alcohol standard that is certified by an analyst as required by section 320.31(1)(a) of the Code. This ground of appeal is related to the first ground of appeal discussed above.
[66] Here, though, the appellant takes the position that the trial judge’s conclusion that the evidence of the qualified technician was satisfactory in this respect was an unreasonable conclusion. He says that “there was no evidence that the alcohol standard used for the calibration check was certified by either an analyst specifically or the CFS generally, or even what the target value and the concentration of alcohol in the standard was.”
[67] I do not accept this argument. First, I have already found above that the trial judge was entitled to conclude that the standard was certified by an analyst based on the evidence of the qualified technician that there was a certificate of analysis. As the Crown submits, the fact that there was a certificate is by itself evidence that the alcohol standard solution was certified. That, as well as the technician’s evidence that the alcohol standard solution had been certified by the CFS, allowed the trial judge to conclude – reasonably – that the alcohol standard solution had been certified by an analysist.
[68] Second, there was evidence upon which the trial judge could reasonably conclude that the target value for the alcohol standard solution was 100 mg of alcohol in 100 mL of blood and that the calibration tests returned results within 10% of this value.
[69] The breath technician testified repeatedly as to the target value. He said that he knew the target value from his training. He said that he had never operated an approved instrument where the target value was not 100 mg of alcohol in 100 mL of blood. He said that that target value was on the label on the bottle containing the standard solution. He reported that the calibration checks returned results of 98 and 96 mg of alcohol in 100 mL of blood, both within 10% of the target value.
[70] On the basis of this evidence, and his finding that the breath technician was a credible witness, the trial judge concluded that “the calibration check was within 10% of the target value of an alcohol standard that was certified by an analysist.”
[71] On the evidence, that conclusion was reasonably open to the trial judge. Therefore, I would not give effect to this ground of appeal.
Conclusion
[72] Accordingly, the appeal is dismissed. I thank counsel for their thorough and very helpful written and oral submissions.
I.R. Smith J.
Released: October 26, 2022
COURT FILE NO.: CR-20-10089-00AP
DATE: 2022-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
His Majesty the King
Respondent
– and –
Marcos Hepfner
Appellant
REASONS FOR JUDGMENT
I.R. Smith J.
Released: October 26, 2022