R v Redford, 2012 ABQB 768

Court of Queen ’ s Bench of Alberta Citation: R v Redford, 2012 ABQB 768 Date: 20121219 Docket: 100590421S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Brandon Sutherland Redford Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Brandon Sutherland Redford, the Appellant, was convicted on February 3, 2012 in Provincial Court of operating a motor vehicle when his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood: R v Redford , 2012 ABPC 19 .

[ 2 ] The Appellant submits that the trial judge erred in requiring that service of the Certificate of Analyses be proven only on a balance of probabilities, and not on the higher standard of beyond a reasonable doubt. II. Background Facts [ 3 ] Constable Peter Hlbocan, the lead investigator, was the only witness to testify at the trial. The learned trial judge made the following findings of fact with respect to the service of the Certificate of Analyses. [ 4 ] After completion of the breath samples, Cst. Davis provided Cst.

Hlbocan with a document which contained a Certificate of Analyses and a Notice of Intention to Produce Certificate on the front page. The back of the document contained an Affidavit of Personal Service. [ 5 ] Cst. Davis completed the portion of the document consisting of the Certificate of Analyses. After receiving the document from Cst. Davis, Cst. Hlbocan completed the portion of the document consisting of the Notice of Intention to Produce Certificate. Cst.

Hlbocan also signed the “ Affidavit of Personal Service ” on the back of the certificate: Trial Excerpt , p 24, ll 34-35. [ 6 ] After ensuring the copies of the Certificate of Analyses were identical to the original, Cst. Hlbocan gave a copy of the certificate to the Appellant, in addition to a number of other documents. Cst. Hlbocan testified that he always explains every document that he serves. [ 7 ] The Appellant was facing other charges and it was necessary for him to be lodged in custody. As a result, Cst.

Hlbocan placed the Certificate of Analyses and other documents which had been served on the Appellant with the Appellant ’ s personal property. Cst. Hlbocan then completed a Personal Property Report and testified that the Appellant “ signed the personal property - that he acknowledged that that ’ s all his property ” . [ 8 ] Cst. Hlbocan did not accompany the Appellant to the Arrest Processing Unit, was not present at the Appellant ’ s bail hearing and was not present when he was released from custody.

No evidence was presented in the voir dire in relation to what property or documents, if any, were given to the Appellant when he was released. [ 9 ] The trial judge concluded that the appropriate standard of proof for service of the Certificate of Analyses was on a balance of probabilities and he was satisfied that the standard had been met in the circumstances. As a result, the Certificate of Analyses was admitted into evidence.

However, the learned trial judge added: 82 If I am found to be in error regarding the standard of proof required for s. 258(7) and if, as a result, the preconditions to admissibility of the Certificate of Analyses must be proven on a criminal standard, then I would have followed Garson and concluded that the Crown failed to prove beyond a reasonable doubt that the Certificate of Analyses was given to the Accused. III.

Issue [ 10 ] The sole issue to be determined on this appeal is the burden of proof which the Crown must meet in order to establish service of the Certificate of Analyses on an accused before the certificate may be received in evidence. The Appellant argues that the Crown must establish service beyond a reasonable doubt, while the Crown maintains that it need only establish service on a balance of probabilities. IV. Standard of Review

[11] The standard of review for questions of law is correctness: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235.The applicable standard of proof for the introduction of evidence in a criminal trial is a question of law. Therefore, it is reviewable on thestandard of correctness. V. Analysis [12] The Accused was charged under ss. 253(1)(

a) and (

b) of the Criminal Code. Section 258(7) of the Code provides that in aprosecution for an offence committed under s. 253: 258(7) No certificate shall be received in evidence ... unless the party intending to produce it has, before the trial, given to the otherparty reasonable notice of his intention and a copy of the certificate. [13] The trial judge noted that there is conflicting authority as to whether the preconditions of admissibility in s. 258(7) must beproven on a balance of probabilities standard or on the higher criminal standard of proof beyond a reasonable.

As the Crown and theAppellant have done on this appeal, the trial judge began his analysis by considering the decision of the Supreme Court of Canada in R vEgger, (SCC), [1993] 2 SCR 451. [14] In Egger, two blood samples were taken for an analysis of Egger’s blood alcohol level, one for the police and one for anindependent analysis by Egger. Two months later, Egger was charged with impaired driving related offences. At the same time, he wasserved with a Certificate of Analyses.

Due to inadvertence, Egger was not served until the day before trial with a Certificate of QualifiedTechnician stating that the taking of the two samples complied with the Criminal Code and that a second sample was taken to permit ananalysis to be made by Egger. The Court considered the proper

interpretation of s. 258(1)(d), and in particular, what the prosecution mustdisclose to an accused, and when it must do so, in order to have the benefit of the presumption. [15] In considering this, the Court addressed the standard of proof: 32 ... While proof on a balance of probabilities is an acceptable standard in deciding a preliminary question of fact with respect to theadmissibility of evidence ..., the general rule with respect to determination of vital issues in a criminal process requires proof beyond areasonable doubt. ... The issue here is very different from a question of admissibility of evidence.

The effect that satisfying the burden ofproving preliminary facts to the admissibility of evidence is only that the evidence is admitted: it determines neither the weight of theevidence nor the guilt of the accused. This occurs in the next step in the process during which the Crown must satisfy its legal burden.When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. ...

Establishingthe facts which trigger a presumption with respect to a vital issue relating to innocence or guilt is a step further advanced than theadmissibility of evidence and is only reached after crossing the hurdle of admissibility.

The effect of the presumption in this case is toprovide conclusive proof of the accused's blood alcohol concentration at the critical time, in the absence of evidence to the contrary. ... [16] While the Court did not address the issue of whether the requirements of s. 258(7) must be established on a criminal standard,it did emphasize the distinction between the proof required for the admissibility of evidence and the proof required to trigger apresumption on a “vital issue”: the former is satisfied by proof on a balance of probabilities, whereas the latter requires proof beyond areasonable doubt. [17] This excerpt from Egger has been discussed in many breathalyzer cases addressing s. 258(7).

A first line of cases regarding s.258(7) concludes that service is an issue related to admissibility of the certificate, and therefore the standard is proof on a balance ofprobabilities. The courts in question have reasoned that service of the Certificate of Analyses is a preliminary question of fact which doesnot go to a vital issue in the criminal process relating to the guilt of the accused. The admissibility of the certificate is addressed as aseparate issue from the availability of the presumption of accuracy contained within the breathalyzer provisions.

See, for example: R vBuffalo, 2010 ABQB 325, aff’ing 2009 ABPC 261 (obiter); R v MacKinnon, (2003), (ON CA), 177 OAC 188(CA); R v Mokelky, 2008 ABPC 343; R v Viravong, 2011 ABPC 111; R v Singh, 2012 ABPC 91; in R v Nelson, 2006 ABQB 297(obiter). [18] The second line of authority holds that proof of service of a Certificate of Analyses under s. 258(7) requires proof beyond areasonable doubt.

The prevalent themes throughout this line of jurisprudence are the importance of giving the Certificate of Analyses tothe accused, the conclusive effect of its admission into evidence, and the potential jeopardy to the accused’s liberty. See, for example: R

v Northcott (1995), (AB KB), 177 AR 94 (QB); R v Duplessis (2006), 49 MVR (5th) 252 (AB QB); R v Nitschke[2007], AJ No 1579 (QB); R v Mario, 2010 ABPC 305. [19] Counsel note that both Northcott and Duplessis did not specifically reference Egger, and that the standard of proof wasadmitted by the Crown in Nitschke. Although no specific mention of Egger was made in Northcott and Duplessis, both Moshansky J.and Murray J. gave reasoned decisions based on criminal law principles.

As well, in Nitschke, McIntyre J. cited and expounded onEgger. [20] More important are the subsequent amendments to the Criminal Code and recent decisions from the Supreme Court ofCanada in R v St-Onge Lamoureux, 2012 SCC 57 and R v Dineley, 2012 SCC 58. In my view, these developments have an impact onthe conclusiveness of the Certificate of Analyses and therefore mandate a fresh analysis of the issue. [21] The Tackling Violent Crime Act, SC 2008, c 6 came into force on July 2, 2008.

As a result, new ss. 258(1)(c), 258(1)(d.01)and 258(1)(d.1) of the Criminal Code eliminated the so called “Carter defence” by limiting what constitutes “evidence to the contrary”.In R v Carter (1985), (ON CA), 19 CCC (3d) 174 (Ont CA), the Court held that “evidence to the contrary” includedtestimony about the accused’s quantity of alcohol consumption, in addition to expert toxicological evidence indicating the rate at whichthe accused metabolized alcohol.

The combination of the two were available to raise a reasonable doubt as to the accuracy of thebreathalyzer test. [22] The 2008 amendments limit the accused’s ability to rebut the presumption of accuracy of the breathalyzer test. Additionally,the amendments restrict the type of evidence available to the accused to rebut this presumption. Section 258(1)(

c) required the accusedto show the following to rebut the presumption of accuracy: 1. that the approved instrument was malfunctioning or was operated improperly; 2. that the malfunction or improper operation resulted in the determination that the accused’s blood alcohol concentration exceededthe legal limit; and 3. that the accused’s blood alcohol concentration would not in fact have exceeded the legal limit at the time when the offence wasalleged to have been committed. [23] Section 258(1)(d.01) restricts the evidence the accused can rely on to establish the requirements of section 258(1)(

c) andrebut the presumption of accuracy.

The following evidence is not permissible: 1. the amount of alcohol that the accused consumed; 2. the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body; and 3. a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the timewhen the offence was alleged to have been committed. [24] Section 258(1)(d.1) provides that where the accused’s blood alcohol level exceeds the legal limit at the time of thebreathalyzer, it is presumed to have also exceeded the legal limit at the time of the offence. [25] The majority in Dineley held that the amendments affected substantive rights, as opposed to affecting only the manner inwhich the evidence was presented. [26] The constitutional validity of the amendments was considered in St-Onge.

All three provisions (ss. 258(1)(d.01), 258(1)(d.1)

[26] The constitutional validity of the amendments was considered in St-Onge. All three provisions (ss. 258(1)(d.01), 258(1)(d.1)and 258(1)(c)) were found to infringe the accused’s right to be presumed innocent, as they created a statutory presumption whereby theaccused could be convicted even if the trier of fact was left with a reasonable doubt as to the accuracy of the breathalyzer test. However,ss. 258(1)(d.01) and 258(1)(d.1) were saved under s. 1 of the Charter, as was the requirement in s. 258(1)(

c) that the accused show thatthe instrument malfunctioned or was operated improperly. The requirements under s. 258(1)(

c) that the accused show a connectionbetween the malfunction or improper operation and failed breathalyzer test, and that the accused show that his or her blood alcohol levelwould not in fact have exceeded the legal limit, were struck down as unconstitutional. [27] As a result of the amendments, and as confirmed by St-Onge, the only way for an accused to rebut the presumption ofaccuracy of the breathalyzer test is to call evidence that the instrument was functioning improperly or was operated improperly. TheCarter defence has been eliminated by s. 258(1)(d.01).

It is therefore no longer open to the accused to present evidence regarding his orher alcohol consumption, or the rate at which the body metabolizes alcohol in order to rebut the presumption of accuracy of thebreathalyzer test.

Lastly, s. 258(1)(d.1) provides the presumption whereby the accused’s blood alcohol concentration is presumed to haveexceeded the legal limit at the time of the offence if it did so at the time of testing. [28] St-Onge and Dineley confirmed that the amendments affected substantive rights, and created a statutory presumptionwhereby an accused can be convicted even if the trier of fact is left with a reasonable doubt as to the accuracy of the breathalyzer test.

Asthe majority pointed out, s. 258(1)(d.1) exempts the prosecution from having to establish the guilt of the accused beyond a reasonabledoubt before the accused must respond. The only way the accused can then respond is by showing that the approved instrumentmalfunctioned or was operated improperly. [29] None of the above-cited cases on the issue of the standard of proof for service was decided with the benefit of the decisionsin St-Onge and Dineley. [30] In Egger, the presumption of accuracy regarding blood samples under s. 258(1)(

d) was triggered unless the accusedpresented some “evidence to the contrary”. The legislative amendments and the decision in St-Onge limit what constitutes “evidence tothe contrary” for the purposes of breath samples under s. 258(1)(

c) and what is therefore available to the accused to rebut thepresumption. As a result, the defences available to the accused have been significantly limited. Therefore, the Certificate of Analyses hasa more conclusive effect on the determination of the accused’s guilt. [31] The Crown argued that the admissibility of the certificate into evidence and the availability of the presumptions containedwithin the statutory provisions are distinct issues.

It submits that there is a critical distinction between establishing facts for theadmissibility of evidence and establishing facts which trigger a presumption with respect to a vital issue.

The Crown submitted that thereis a two-step process in relation to a Certificate of Analyses: 1. the Certificate is admitted pursuant to s. 258(7) on a balance of probabilities; and 2. the weight accorded to the Certificate is established through the presumptions beyond a reasonable doubt. [1] The Crown argued that in contrast to the presumptions contained elsewhere, s. 258(7) does not give rise to a presumptionof a vital issue, as it does not provide an evidentiary shortcut for the Crown.

In the Crown’s submission, it merely acts as a provisionensuring procedural fairness for the accused. [2] As was found in Egger, the admissibility of the Certificate of Analyses does not depend on meeting the conditions for thepresumption. However, the Court went on to state that when admission of the evidence may itself have a conclusive effect with respect toguilt, the criminal standard is applied.

Once the burden of proof for service is satisfied, and the Certificate is admitted into evidence, itdoes provide an evidentiary shortcut for the Crown. [3] The Crown also noted that R v Stinchcombe, (SCC), [1991] 3 SCR 326 requires full disclosure prior toelection and plea, and submits that this would include a photocopy of the Certificate, making s. 258(7) redundant. The accused may availhimself of s. 7 of the Charter to remedy disclosure problems. The simple answer to this argument is that s. 258(7) is not redundant ifproof of service under that provision is required to be established beyond a reasonable doubt.

Stinchcombe was considered at somelength in Egger.

[4] It was also suggested that the balance of probabilities is applied in other contexts, such as DNA evidence, where theevidence is virtually conclusive of an essential element. [5] DNA evidence does not trigger an evidentiary presumption or shortcut. Rather, it goes in as one piece of circumstantialevidence to determine the elements of the offence on the criminal standard of beyond a reasonable doubt: J-G Boilard, Guide to CriminalEvidence, Vol 2 (Cowansville [Quebec]: Y.

Blais, 1991-), ch 3 at 3-267. [6] In the case of a Certificate of Analyst under ss. 51 and 52 of the Controlled Drugs and Substances Act, SC 1996, c 19, thepresumption created under s. 51(1) operates “in the absence of evidence to the contrary”. The certificate therefore does not provideconclusive evidence of the nature of the substance seized. Additionally, unlike the breathalyzer Certificate of Analyses, there are noqualifications or limitations placed on the type of evidence that is required or permitted to be produced to rebut this presumption.

Aswell, the notice provision in s. 51(3) is prefaced with “unless the court otherwise orders”. The court therefore has discretion to admitcertificates of drug analyses, notwithstanding non-compliance with the notice provision. The CDSA does not identify the applicablestandard of proof.

It has been suggested, however, that the balance of probabilities standard would be sufficient: BA MacFarlane et al,Drug Offences in Canada, 3rd ed, Vol 2 (Aurora, Ont.: Canada Law Book, 1996-), ch 13 at 13-14, citing R v MacKinnon (2003), (ON CA), 177 OAC 188. [7] Regardless of what standard applies in relation to DNA evidence or Certificates of Analysts under the CDSA, it does notnecessarily follow that the same standard applies to the admissibility of Certificates of Analyses under the Criminal Code breathalyzerprovisions. [8] I conclude that service of the Certificate of Analyses and its admissibility have become even more “vital” issues.

Due to theaccused’s limited ability to rebut the presumption of accuracy, a Certificate of Analyses’ admission may well have a conclusive effect onthe determination of the accused’s guilt. This result can occur even if the trier of fact is left with a reasonable doubt as to the accuracy ofthe breathalyzer test.

In my view, service of the certificate should therefore be determined on the higher criminal standard of beyond areasonable doubt. [9] I note that this result appears to be in keeping with Kerans J.A.’s statement in R v Nicholson, 1984 ABCA 88 ,[1984] AJ No 2522, 52 AR 132, leave denied on another ground: [1984] SCCA No 176: 26 ...The accused is quite correct in asserting that it was necessary here, for conviction, that the Crown establish beyond a reasonabledoubt that the accused was served with a notice of intention to use the breath-test certificates against him...

The question is then whetherthe offender is the accused, which is the next point... [10] I recognize that this statement was made in the context of an issue of identification of the accused, but its breadth supports theview, even prior to the amendments and the recent Supreme Court authority, that the applicable standard of proof was beyond areasonable doubt. [11] The Court of Appeal does not appear to have squarely addressed the question of the applicable standard of proof since thattime.

In R v Cunningham, 2006 ABCA 345, 401 AR 35, the Crown conceded that the beyond a reasonable doubt standard applied, sincethe admission of the Certificate of Analyses constitutes proof of an element of the offence. Without addressing the applicable standardfurther, the Court agreed that the Crown’s obligation had been met. [12] In R v Hey, 2009 ABCA 204, 81 MVR (5th) 130, leave to appeal was denied as there was no suggestion that the trial judgeapplied the civil standard to proof of service, and the comment by the

summary conviction appeal judge on the applicable standard wasobiter. [13] The Crown refers to R v Good (1983), 1983 ABCA 141 , 44 AR 393 (CA), but the issue in that case was the contentof the notice, in other words what constituted “reasonable” notice. In MacKinnon the Ontario Court of Appeal neither referenced Eggernor undertook a detailed analysis of the issues discussed therein. The issue in MacKinnon appears to have related solely to the content ofthe computer-generated copy of the Certificate, rather than whether or not it was served.

[14] Meeting this higher standard of proof in relation to service should not be an overly onerous task on police or the Crown. In Cunningham , where the Crown had conceded the standard was beyond a reasonable doubt, the Court of Appeal held that the officer's standard practice met the Crown's obligation of proving service of the notice. As the Crown has control of the situation and process with respect to service, it is within the Crown ’ s abilities to avoid evidentiary problems and ensure valid proof of service is obtained.

In these circumstances, the convenience of the Crown does not outweigh the risk to the liberty of the accused. Where the Crown is unable to establish service, it may call evidence. VI. Conclusion [15] The decision of the trial judge as it relates to the appropriate burden of proof for service of the Certificate of Analyses is overturned. His factual findings were not appealed and are therefore not disturbed.

As a result, the Certificate of Analyses is inadmissible and the accused is acquitted of the charges of driving while impaired and operating a motor vehicle with a blood alcohol concentration above the statutorily prescribed limit contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . Heard on the 22 nd day of November 2012. Dated at the City of Edmonton, Alberta this 19 th day of December 2012. Eric F. Macklin J.C.Q.B.A. Appearances: B. Tralenberg for the Appellant (Accused) M. Rosborough for the Respondent (Crown)