Court File and Parties

Court File No.: SCA(P) – 23-75

Date: 2025-10-02

Ontario

Superior Court of Justice

Between:

His Majesty the King – Appellant

and

James Klemp – Respondent

Counsel

Arish Koorshed, for the Appellant/Crown

Adam Little, for the Respondent

Hearing

Heard: September 13, 2025

Reasons for Decision

Chozik J.

Introduction

[1] On July 31, 2023 the trial judge, Justice S.N. Latimer of the Ontario Court of Justice [as he then was], dismissed charges of impaired operation of a motor vehicle and "over 80" against the Respondent, James Klemp. The trial judge held that the certificate of qualified technician ("CQT") was not admissible. The CQT records information gathered during the breath testing process. Under section 320.32(2) of the Criminal Code, R.S.C., 1985, c. C-46, the Crown can rely on the CQT to establish an accused's blood alcohol concentration without calling the qualified technician who took the breath samples to testify. The trial judge found the CQT inadmissible in this case because the Crown had not proven that Mr. Klemp was "given" a copy of the certificate as required under s. 320.32(2).

[2] Section 320.32(2) says:

No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate [emphasis added].

[3] The Crown appeals from the dismissal. The Crown argues that the trial judge erred by requiring the Crown to prove something more than that the accused was shown the certificate and signed it. The Crown frames this as a question of law. The Crown also argues that the trial judge erred by applying a higher burden of proof than a balance of probabilities.

[4] I disagree, and would dismiss the appeal for the following Reasons.

Evidence at the Trial

[5] Only one witness testified at the trial, Constable Samantha Foley of the Halton Regional Police Service. Her evidence was not challenged.

[6] Constable Foley testified that she stopped Mr. Klemp operating a motor vehicle. She made a roadside demand that he provide a sample of his breath into the Approved Screening Device (ASD). He did so and it registered a fail. She arrested him for impaired driving, read him the caution and his rights to counsel, made a demand for a sample of his breath, transported him to the station, where he was paraded before the Sergeant at Central Lock Up ("CLU") and lodged in a cell. She ensured that he spoke to a lawyer, and then turned over his custody to the breathalyser technician, Constable Ryan Pirillo.

[7] After his breath tests, Mr. Klemp was returned to the cell to "sober up". Constable Foley testified that she received documents from the breathalyser technician. It was acknowledged at the trial that these documents were the CQT. Constable Pirillo gave her two copies. She compared them to ensure they were true copies. She then kept one for the file and "served" the other on Mr. Klemp. By "served", she testified that she explained the document to Mr. Klemp, and he signed it. She then took it back. She had no other contact with him. She testified that he was held in the cells and would not be released until he was sober.

[8] Constable Foley testified that she did not leave a copy of the CQT with Mr. Klemp. After he signed it, she took the document from him and gave it to CLU to put with his property. She was not there when Mr. Klemp was released. She testified that she had no knowledge as to whether CLU staff gave him a copy of the CQT upon release and said: "they would have to testify to that".

[9] The defence argued at the trial that s. 320.32(2) requires that the accused be "given" a copy of the CQT. In the absence of evidence that this was done, the Crown could not rely on the CQT. The Crown at the trial (not Mr. Khoorshed) did not disagree. Rather, the Crown invited the trial judge to infer that Mr. Klemp received a copy of the certificate when he was released. The trial judge held that in the absence of evidence of what happened to the document after Constable Foley left it with CLU staff, the CQT was not admissible. The Crown called no further evidence and invited the trial judge to dismiss the charges.

The Trial Judge's Reasons for Judgment

[10] In his Reasons for Judgment, the trial judge first observed that the CQT is a "statutory shortcut" that permits hearsay to be adduced in a criminal proceeding. It is part of an overall evidentiary and statutory scheme intended to promote efficiency in the prosecution of impaired driving offences. The provisions are designed to assist the Crown in proving its case and limit the rights of the accused. As a result, the provisions are to be strictly construed. Any ambiguity must be interpreted in favour of an accused: R. v. Noble, [1978] 1 S.C.R. 632, at p. 637.

[11] The trial judge found that s. 320.32(2) has two components: an informational one, requiring that an accused be given notice of the intention to produce the CQT at a trial and a tangible or physical one, requiring that a copy of the CQT be provided to an accused.

[12] The trial judge noted repeatedly that whether the Crown has satisfied the preconditions for admissibility of the CQT is a question of fact. Citing R. v. MacKinnon, 177 O.A.C. 188 (Ont. C.A.), he expressly stated that the preconditions must be proven by the Crown on a balance of probabilities. Given undisputed evidence that Constable Foley did not leave the CQT with Mr. Klemp, the trial judge focused on whether he could infer that upon his release, Mr. Klemp received a physical copy of the CQT. With "some reluctance", the trial judge found that there was an "inferential gap" as to what happened after Constable Foley left the document with CLU staff.

[13] To fill that gap, in this case, the trial judge needed some evidence as to what CLU staff did or what their standard practice is in respect of the CQT. On the evidence before him, the trial judge was not satisfied "on a balance of probabilities" as a matter of fact that a copy of the CQT was given to Mr. Klemp. He concluded that the statutory regime therefore did not permit the CQT to be admitted at the trial.

Crown's Argument on the Appeal

[14] On appeal, the Crown argues that the trial judge erred by focusing the inquiry on what happened to the CQT after Mr. Klemp was released. The Crown frames this argument as a question of law. The Crown argues that it was sufficient for the purpose of s. 320.32(2) that Mr. Klemp was shown the document in the cell. The Crown also submits that the trial judge erred in law by imposing a higher standard of proof than a balance of probabilities, since there was no evidence that Mr. Klemp did not receive the certificate.

[15] As I have indicated, I would give no effect to these arguments.

Analysis

[16] Whether the Crown has met the pre-conditions for admissibility of the CQT under s. 320.23(2) is a question of fact, not a question of law. In R. v. Hamm, [1977] 2 S.C.R. 85, at p. 94, the Supreme Court of Canada held that reasonableness of notice under the similarly worded s. 237(5) under the previous scheme is a question of fact. At that time, section 237(5) stated:

(5) No certificate shall be received in evidence pursuant to paragraph 1(d), (e) or (f) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

See also R. v. Charby, [2002] O.J. No. 4842 at paras. 23-25; R. v. Bender (1980), 3 Sask. R. 277, at paras. 9-13 (Sask. C.A.).

[17] In this case, the trial judge clearly approached the issue as a factual one. He said:

I find this case factually on all fours with Justice Rose's judgment in Hurlbut, and I find it factually different with regard to what happened to the certificate as demonstrated in the evidence in the Redford decision on which it seems much of our Ontario jurisprudence is based. Again, this is a factual issue. I am coming to a factual conclusion on this evidentiary record that I am not satisfied on a balance of probabilities that a copy was given – a copy of the certificate was given to Mr. Klemp.

[18] Earlier, in his Reasons, the trial judge also stated that whether a physical or tangible copy of the CQT was given to Mr. Klemp is "ultimately a question of fact".

[19] In R. v. Hurlbut, [2015] O.J. No. 2459, the evidence was similarly short as to what happened to the certificate after it was shown to the accused in the cell and then left by the officer with a staff sergeant at the booking desk. There was no evidence in that case that the certificate was put in the accused's property bag or otherwise received by him. The only evidence was that the officer left the certificate with the booking desk sergeant. The officer had no knowledge of its fate after that: Hurlbut, at para. 2. The trial judge concluded that because there was no evidence the certificate was put into the accused's property bag or that the accused ever received a copy of it after signing it, the certificate could not be admitted.

[20] Similarly, in R. v. Liu, [2014] O.J. No. 6486 and in R. v. Wong, [2017] O.J. No. 4063, there was no evidence that a physical copy of the certificate was given to the accused after he saw it and signed it in the cells. The certificates were not admitted and acquittals followed.

[21] In this case, the trial judge's concern about the lack of any evidence as to what happened to the CQT when Mr. Klemp was released is grounded in the evidence. The trial judge's conclusion that proof that Mr. Klemp was given a copy of the CQT as required under s. 320.32(2) fell short is a factual finding.

[22] I conclude that this Crown appeal does not raise any question of law. Rather, the Crown's appeal is from a finding of fact or, if stretched, a question of mixed law and fact.

[23] The Respondent argues that the Crown's right of appeal against an acquittal of an accused at trial is limited to questions of law alone: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 13-16. To succeed on an appeal from an acquittal, the Crown needs to show not only that the judge made an error as to the law, but also bears a heavy onus to demonstrate with a reasonable degree of certainty that the verdict would not necessarily been the same: R. v. Livermore, [1995] 4 S.C.R. 123, at paras. 43-45; Graveline, at paras. 15-16.

[24] On a question of mixed law and fact, absent an extricable error of law, the standard of review is one of palpable and overriding error: R. v. Schofield, 2017 NSCA 30, 347 C.C.C. (3d) 439 (N.S. C.A.), at para. 17; R. v. Fitzpatrick, 2017 NLTD(G) 209 (NL SC) at paras. 4-7; R. v. Redford, 2014 ABCA 336, 584 A.R. 284 (Alta. C.A.), at para. 12; R. v. Kelly, [2020] O.J. No. 5126 (S.C.), at paras. 56-62, 80-88.

[25] In R. v. Kelly, at paras. 56-62, Durno J. observed, citing R. v. Labadie, 2011 ONCA 227, at paras. 49-50, that the language of section 813 governing summary conviction appeals does not limit the Crown's right of appeal and that the Crown has a right of appeal under s. 813(b)(i) on grounds involving law, mixed law and facts or facts alone.

[26] Regardless of whether the appeal raises a question of law alone, I would dismiss the appeal because the Crown has not made out a palpable or overriding error in respect of the trial judge's finding that Mr. Klemp was not given a copy of the CQT. To the contrary, the trial judge's findings in this regard are reasonable, fair and amply supported by the evidence.

[27] There was no evidence that Mr. Klemp was given a copy of the CQT. The only evidence was that he was shown the document in the cells and that it was taken away from him. Section 320.32(2) requires that an accused be "given" a copy.

[28] The meaning of the word "given" in section 320.32(2) is at the root of this appeal. None of the cases relied on by the Crown consider the statutory interpretation of the word "given".

[29] On appeal, the Crown argues that to meet the conditions for admissibility of a CQT under s. 320.32(2) it is enough that an accused be shown the document. Mr. Khoorshed, for the Crown, argues that whether it is "shown", "displayed" or "given" is, for the purpose of s. 320.32(2), of no consequence. He relies on the decisions in R. v. Redford, R. v. Kelly and R. v. El Boury, 2016 ONSC 4900, for this proposition.

[30] This argument was not made by the Crown at the trial. At the trial, the Crown invited the judge to infer from the evidence that Constable Foley left the CQT with CLU and that Mr. Klemp was given a copy of it upon his release. The Crown did not argue, as Mr. Khoorshed does on appeal, that merely showing the CQT to the accused even for a second was sufficient to meet the preconditions for admissibility under s. 320.32(2).

[31] As a matter of fairness, the Crown is barred from raising arguments on a Crown appeal from an acquittal which it did not advance at the trial: R. v. Vagra (1994), 18 O.R. (3d) 784 (C.A.); R. v. Tran, 2016 ONCA 48, at paras. 3-4; R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508 C.A.), at paras. 30-35; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187 (Ont. C.A.), at paras. 34 and 57-61.

[32] In my view, applying the principles of statutory interpretation set out in Woods (Re), 2021 ONCA 190, 154 O.R. (3d) 481, at paras. 39-41, 'giving' a copy cannot mean offering temporary or fleeting possession but rather it contemplates a permanent transfer of the thing to be given. This interpretation is consistent with the ordinary meaning of the word, the purpose of the provision as well as the interpretation of the word elsewhere in the Criminal Code: ss. 117.13(3), 145(9), 347(4), 461(2), 491.2(5), 657.1(3), 667(4), 729(3), 729.1(3), and 811.1(3).

[33] This interpretation makes sense having regard both to the evidence and the wording of the provision. Constable Foley received two copies of the document: one for the file, and one for the accused. In my view, the intention behind making two copies was that one copy be given to Mr. Klemp for him to keep.

[34] The purpose of the provision is to ensure that within this efficient prosecutorial regime, where otherwise inadmissible hearsay at trial is received as proof of crucial essential elements of the offence, an accused can make full answer and defence: Redford, at para. 41. Possession of the CQT is essential for an accused to make an informed decision about how to respond to the charges. This is especially so given that the legislation now requires an accused person to bring a written application for an order requiring the attendance of the qualified breathalyzer technician before an accused can even cross-examine that key witness. The application not only has to be brought in writing, in advance of the trial, but must now also set out the likely relevance of the proposed cross-examination in respect to the facts alleged in the certificate: S. 320.32(3) and (4).

[35] The CQT must be 'given' to the accused so that the accused can decide whether to cross-examine the qualified technician at the trial and be able to make the necessary written application and satisfy the 'likely relevance' requirement. The modest requirement that a physical copy of the CQT be given to an accused unlocks a powerful tool for the Crown: the CQT can be filed to furnish conclusive proof of the accused blood alcohol concentration and satisfy an essential element of the impaired / "over 80" care and control offences.

[36] An accused person, waiting in the cells to 'sober up' like Mr. Klemp, cannot reasonably be expected to be in a position to meet the above requirements if he is merely shown the CQT or it is displayed for him, even if it is explained to him (a requirement that is not in the legislation). More than a momentary glance or 'handling' or temporary possession of the CQT is required in order to enable an accused to make full answer and defence. In my view, by requiring that an accused to be "given" a copy of the CQT, Parliament clearly intended a permanent transfer of the document to the accused.

[37] I find no error in the trial judge's interpretation of s. 320.32(2) that it requires that a physical copy of the CQT be "given" to an accused. The giving or permanent transfer of a copy of the CQT to an accused can be established in any number of ways.

[38] In Redford, a case relied on by the Crown in this appeal, the facts were somewhat different. The trial judge in that case concluded that service was established where the officer gave the accused a copy of the certificate, took it back, and packaged it with the rest of his property. The officer testified that he then completed the property report, which showed that certificate of analysis was a part of that property.

[39] The issue upon which leave to appeal to the Alberta Court of Appeal was granted in Redford was whether the legal burden on the Crown to prove that the certificate was given to the accused is to be discharged on a balance of probabilities or proven beyond a reasonable doubt. The Alberta Court of Appeal held that the trial judge had applied the wrong test in requiring proof beyond a reasonable doubt.

[40] It is in that context that the Alberta Court of Appeal stated that it is sufficient to provide reasonable notice by uncontradicted evidence that the accused was "given" the documents. It can be done by way of an affidavit of service, or evidence that the certificate was disclosed to counsel. Neither in that case, or any other relied on by the Crown, was a statutory interpretation analysis taken of the word 'given' in s. 320.32(2).

[41] In my view, the decision in El Boury, also relied on by the Crown, does not stand for the proposition that it is sufficient that an accused person be shown the CQT. At para. 27, Miller J. states: "I agree with the conclusion reached by the Alberta Court of Appeal in Redford, and on that basis, I would not disturb the finding by the trial judge that the certificate had been given to the Appellant."

[42] In Kelly, at para. 88 Durno J. observed that Miller J.'s decision in El Boury was case specific. Durno J. also expressly declined to expand Redford to all situations where an accused is not handed the CQT but it is left with their property. Durno J. was "not persuaded that is appropriate": at para. 70.

[43] Since Mr. Klemp was not given a copy of the CQT while in the cells, it was incumbent for the Crown to show by some other means that he was given a copy.

[44] The Crown called no other evidence to establish that Mr. Klemp was given a copy of the CQT, though it could have. As noted in submissions, it could have adduced evidence as to the standard practices of the CLU or even adduced some evidence that the CQT was given to the accused as part of disclosure. The Crown did not do so. Rather, it invited the trial judge to dismiss the charges.

[45] A trial judge's finding of fact must be afforded the utmost deference, absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. The trial judge's findings in this case are entitled to such deference.

[46] The trial judge twice articulated that the standard he was holding the Crown to was a balance of probabilities. I would give no effect to the Crown's argument that the trial judge applied a higher standard of proof.

Conclusion

[47] For these Reasons, the Crown's appeal is dismissed.

Chozik J.

Released: October 2, 2025